!! DRAFT !!

PREFACE..................................................................................4INTRODUCTION........................................................................9CHAPTER ONE.......................................................................19

INTERNATIONAL HUMANITARIAN LAW: A UNIQUE REGIME...............................................................19I. Jus ad bellum and jus in bello..................................................................................................................20II. Origins and development.........................................................................................................................24

A. Formative ideas..................................................................................................................................24B. The Law of Geneva and the Law of The Hague................................................................................25

III. Specific aspects........................................................................................................................................26IV. Three fundamental dychotomies..............................................................................................................30

A. “International” and “non-international” armed conflicts...................................................................30B. Combatants and non-combatants.......................................................................................................33C. Actors and modes of implementation................................................................................................34

CHAPTER TWO.......................................................................38CONSTRAINTS OF WAR – HOLDING THE CENTRE....................................................................................38

I. General remarks and cardinal principles.................................................................................................39A. General remarks.................................................................................................................................39B. Cardinal principles: The shift from a “horizontal” to a “vertical”, or “quasi-constitutional”, order.43C. Humanity...........................................................................................................................................45D. Military necessity...............................................................................................................................47E. Proportionality...................................................................................................................................52

General considerations...............................................................................................................................52Environmental protection as a case in point..............................................................................................59

F. Distinction..........................................................................................................................................63General remarks.........................................................................................................................................63Direct participation of civilians in hostilities.............................................................................................66Summing up and some examples..............................................................................................................68

II. Constraints in the use of and ban on weapons.........................................................................................70A. General remarks.................................................................................................................................70B. Banning weapons...............................................................................................................................72Most recent example: The ban on cluster bombs..........................................................................................75C. Limiting the Use of small arms as a case in point.............................................................................77Prohibition of nuclear weapons: Relative or absolute?.................................................................................81

III. Concluding remarks: Making the law effective.......................................................................................89A. New weapons, means and methods of warfare..................................................................................89B. Citizens taking centre stage...............................................................................................................90

CHAPTER THREE...................................................................95HUMAN VALUES AND THEIR POTENTIAL: TWO WORLDS OR ONE?...................................................95

I. From the genius loci to the genius orbis?................................................................................................95II. International humanitarian law and human rights law: Structures and processes...................................99

A. Three theoretical models: Predominance of the theory of overlapping circles.................................99B. The rule of complementarity and the doctrine of lex specialis........................................................106C. Symbiosis in living practice: The doctrine of convergence.............................................................111

a. Non-international armed conflicts as a source of growth for international law...................................1122. Areas in need of development.....................................................................................................115aa) Procedural principles and safeguards for internment and administrative detention in armed con-flicts and other situations of violence..............................................................................................116bb) Internally displaced persons......................................................................................................118cc) Missing persons.........................................................................................................................119b) Belligerent occupation.................................................................................................................121

III. Accountability: Procedures and mechanisms........................................................................................126A. Human rights mechanisms...............................................................................................................128B. Individual criminal responsibility....................................................................................................132

1

a) Elements of the idea and its first applications.....................................................................................133b) A new era: The tribunals for Rwanda and the former Yugoslavia..............................................138c) The International Criminal Court................................................................................................144d) Hybrid tribunals: Anchoring criminal justice locally..................................................................148

e) International and internationalized criminal tribunals: An assessment...............................................151C. Truth and reconciliation commissions.............................................................................................154

IV. Genius mundi: Globalization and law....................................................................................................161

CHAPTER FOUR...................................................................168RELIGION AND INTERNATIONAL HUMANITARIAN LAW – SUPPORT AND TENSION...................168

I. A difficult relationship...........................................................................................................................169II. World religions and world views...........................................................................................................172

A. Confucianism...................................................................................................................................172B. Hinduism..........................................................................................................................................178C. Buddhism.........................................................................................................................................182D. Judaism and Christianity..................................................................................................................187

Judaism....................................................................................................................................................187Christianity..............................................................................................................................................191

E. Islam................................................................................................................................................198III. Concluding remarks...............................................................................................................................205

CHAPTER FIVE.....................................................................209INTERNATIONAL HUMANITARIAN LAW IN A GLOBAL ERA...............................................................209

I. The changing nature of warfare.............................................................................................................212A. The “new wars” thesis.....................................................................................................................212B. Implications for international humanitarian law..............................................................................215

II. New actors.............................................................................................................................................218A. Private military companies and economic interests.........................................................................218B. Three challenges for international humanitarian law......................................................................222C. Reminding States of their obligations..............................................................................................225

III. War and natural resources.....................................................................................................................229A. The resource curse...........................................................................................................................229B. Controlling access to international markets – Sierra Leone as case in point...................................230

IV. The arms trade.......................................................................................................................................234A. Dissemination of small arms and the consequences for humanitarian work...................................234B. Economic and strategic interests.....................................................................................................236C. Arms trade treaty.............................................................................................................................238D. Existing State obligations................................................................................................................241

V. Responsibilities under international humanitarian law – A promising new approach.........................243A. Adaptability of international humanitarian law...............................................................................243B. State responsibility to ensure respect for international humanitarian law.......................................246C. Corporate responsibility under international law............................................................................247D. The international community’s “responsibility to protect”.............................................................251

CHAPTER SIX.......................................................................255A NETWORK OF HUMANITARIAN ACTORS – PROMOTION OF............................................................255INTERNATIONAL HUMANITARIAN LAW..................................................................................................255

I. The International Committee of the Red Cross.....................................................................................257II. The role of the United Nations..............................................................................................................261

A. The Security Council.......................................................................................................................262A) General remarks..........................................................................................................................262b) Peacekeeping Operations............................................................................................................266

B. The General Assembly....................................................................................................................273a) General remarks...........................................................................................................................273b) The Human Rights Council.........................................................................................................278

C. The Secretary-General.....................................................................................................................283D. The International Court of Justice..........................................................................................................286

a)“Elementary considerations of humanity”: International humanitarian law as customary law287b)jus cogens and erga omnes norms................................................................................................289c)Assessment...................................................................................................................................292

III. Regional organizations promoting international humanitarian law.......................................................293A. The European Union........................................................................................................................293B. The Council of Europe.....................................................................................................................298

2

IV. The role of non-governmental organizations in international humanitarian law...................................300A. Banning anti-personnel mines.........................................................................................................303B. Banning cluster munitions...............................................................................................................305

V. The media’s role in international humanitarian law..............................................................................308A. The media: “Public watchdog” and objects of instrumentalization.................................................309B. Responsibilities of the media...........................................................................................................312C. Protection under International Law.................................................................................................317

1. A space of liberty.................................................................................................................................317VI. Concluding remarks...............................................................................................................................327

CHAPTER SEVEN.................................................................331A SYSTEM OF SYSTEMS.................................................................................................................................331

I. Warfare in the shadow of the law..........................................................................................................333II. Fundamental challenges: Assessing the state of international humanitarian law..................................338

A. International humanitarian law and the "war on terror"..................................................................339B. Are there gaps in the protection afforded by international law?......................................................340C. Is the law incomplete?.....................................................................................................................345

III. The walls of the law...............................................................................................................................349A. The Martens Clause.........................................................................................................................351B. General principles of law.................................................................................................................354C. Constitutional paradigm?.................................................................................................................358

Constitutionalization in international law................................................................................................358Constitutionalism as a method of construction........................................................................................362Constitutionalism in humanitarian law....................................................................................................363Relevance of the constitutional paradigm for international humanitarian law........................................368

IV. The destructive potential of technology................................................................................................369

Outlook: Practical means and legal ideals........................372I. Implementation......................................................................................................................................373II. Law as a Myth: Nuclear Weapons.........................................................................................................380

Appendix...............................................................................388Bibliography.........................................................................393

3

PREFACE

This text is about International Humanitarian Law or – as it is also called – the

“Law of Armed Conflict” or “Law of War”. It emerged from a series of lectures I de-

livered at The Hague Academy of International Law in Summer 2008. It deals with war

and the means by which international law attempts to contain and, as it were, “human-

ize” organized violence. But my ambitions go beyond the battlefield. This essay ex-

plores the many complex ways in which law functions to regulate warfare, in theory

and in practice. I look into treaties and other sources of international law, but I also try

to step outside the boundaries of ‘black-letter law’ to deal broadly with such matters as

the influence of culture in shaping the norms on war, the institutions that develop those

norms and work for their universal acceptance, the networks of humanitarian actors in

this area and the legal procedures in which the law of war and its various institutions

are embedded. I try to place international humanitarian law in a larger context of inter-

national relations and institutions.1

War can be considered from various perspectives: political, strategic, legal,

scientific, economic, artistic, etc. I shall deal with the subject as a lawyer, but I shall

also include, here and there, reflections that are not, strictly speaking, legal. However,

it is my intention, throughout the text, not to lose sight of the fact that it is the tragic im-

pact of war on human beings that is our main concern.

1 See, methodologically, R.-J. Dupuy, La communauté internationale entre mythe et l’histoire, Paris, Economia,

1986, pp. 41 et seq.; A. Cassese, International Law, 2nd ed., Oxford, Oxford University Press, 2005, p. V.

4

I cannot say this more clearly than by referring to a painting reproduced on the

cover of the pocket-book version of this text that has fascinated me for years: Pablo

Picasso’s Guernica, which he produced for the Exposition Internationale des Arts et

Techniques dans la Vie Moderne held in Paris in 1937. In this huge, mural-sized paint-

ing, Picasso expressed his shock at the brutal and wanton destruction of the Spanish

town of Guernica in 1936, at the beginning of the Spanish Civil War. Guernica depicts

the shapes of animals and human beings twisted by passion, hate and suffering in

sombre shades of white, grey and black: it is a vehement and unforgettable symbolic

representation of the torments of war, the spiral of hate and revenge and the loss of

hope: Grozny the day before yesterday, internal, international and mixed armed con-

flicts in the Balkans yesterday, and Sudan, Somalia, Colombia, Palestine and other

sites of violence today; they all are versions of the horrors rendered in Guernica. Pi-

casso’s was a cri de coeur. His condemnation of such needless brutality did not cause

the fall of General Franco’s dictatorship - which survived for more than forty years -

and seems not to have affected the nature of his regime. However, his painting has re-

mained alive in our collective memory since its creation. In the following pages, I will

deal with the phenomenon of war in a more abstract way and try, from a more distant

and objective perspective, to deal systematically with its various manifestations. But as

we go through the following chapters, let us try not to lose sight of the elemental mes-

sage conveyed by Picasso’s figures.

Thinking about war as an international lawyer can mean a number of different

things. For instance, one might choose an approach that is rather “technical” or one

that is “philosophical.” This means that one intends, first of all, to interpret and com-

ment on existing law and on legal institutions by examining these matters closely and

minutely; or, if one’s approach is philosophical, that one will try to discover the great

5

lines of tradition and thought that shape the field under consideration. One might also

concentrate on the law as it is or instead emphasize developing or ‘engineering’ the

law to make it more responsive to the problems that are constantly emerging. Finally,

one might opt for a narrative that deals with processes and events, movements and

results, institutions and personalities in their inter-connectedness - a series of unend-

ing stories told in sequence; or, one might choose to proceed in an analytical manner,

which is what lawyers normally do: defining terms and building categories as instru-

ments to order and control social life. This book makes use of all these methods, but

when I had to choose among them - in order to restrict the text to a manageable length

- I gave preference to a broad approach, which, I hope, will not unduly tax the under -

standing of the reader and may, perhaps, even inspire him or her.

One point should be made clear right at the outset: it is my contention that at

the beginning of the 21st century the international legal order finds itself in a phase of

transition. It is shifting from the classical inter-State order to a much more diversified,

richer, and global system of actors and norms. I share the view expressed by Judge A.

A. Conçado Trindade in his General Course published by the Academy in 2005 that

there is “an ineluctable feeling of injustice escaping from an international legal system

which is unable to provide answers to the pressing needs of protection to whole seg-

ments of the population and to millions of vulnerable and defenceless human beings”2.

And I share his view that, after a fragmented world order existing for a few centuries

and constructed inter gentes, a new model of jus gentium will emerge3. For this reason

we shall, in the following pages, return from time to time to the enlightened teachings

of the founding fathers of international law who, standing at the threshold of modern 2 A.A.C. Trindade, “International Law of Humankind: Towards a new Jus Gentium – a General Course on Pub-

lic International Law”, Recueil des cours, Vol. 317 (2006), p. 35.

3 Ibid., p. 28 ff.

6

international law, had - so it seems to me - a broader and a truly universal vision. In

any case, this view makes our subject even more fascinating. It enables us to under-

stand international law as an order based on universal values, but it also traces its ori-

gins and its rootedness in a “common heritage” of world cultures. These ideas are at

the core of this extended essay and give it its general direction.

Writing a book or an extended essay essentially means talking to an imaginary

reader. For the present purpose I have taken as my readers scholars and other col-

leagues, students (in the broadest sense of the word), public figures and practical-

minded citizens who are curious by nature and interested in penetrating one of the old-

est fields of international law, not only for its own sake but also because it might en-

able them to acquire a general understanding of the ways in which the law and its ma-

chinery function, in theory and in practice. I have in mind a spirited reader with imagin-

ation and a willingness to critically evaluate the law as it is, as well as the desire to im-

prove it if that seems necessary. For it is, after all, human consciousness and a sense

of human values and justice that are the bases of the law and that give force and dir-

ection to its development. But this book is also addressed to two other potential

groups of readers: those who generally ignore international law and those who have a

cynical contempt for it or even attack it. I hope to demonstrate to both these groups

how much collective wisdom is immanent in this corpus juris, and with how much care

and devotion it must be tended so that it can render its services to humanity even

more effectively. To those politicians and scientists who belabour international human-

itarian law with the specious argument that it is now obsolete because new types of

war have largely replaced the old ones, to these people I simply say: “Do you under-

stand modern international humanitarian law at all?” I ask myself: Do they genuinely

believe that protecting women and children driven from their home in Darfur, uniting

7

families in Sri Lanka, condemning attacks on schools and hospitals in Gaza or using

cluster bombs in densely populated areas, do they believe all these were meaningless

events unaccounted for or convened by an outmoded legal system? This book has an

argument to make, a persuasive, I hope: to defend the need to uphold a necessary

system of law and to adapt it to changing needs brought about by new realities. All

these thoughts were in my mind during the writing of this text. I should also like to

thank those who now have the text under their eyes for their time and for their interest.

8

INTRODUCTION

„[Die Denker] sind die Generalstabsoffiziere, die in

der Zurückgezogenheit die zu schlagende Schlacht

mit grösserem oder geringerem Scharfblick

ausdenken. Diejenigen, die im öffentlichen Leben

eine Rolle spielen, sind die Unteroffiziere, die für

grössere oder kleinere Einheiten die Direktiven in den

Tagesbefehl übertragen.“

- Albert Schweitzer4

“International law is not rules. It is a normative sys-

tem. All organized groups and structures require a

system of normative conduct – that is to say, conduct

that is regarded by each actor, and by the group as a

whole, as being obligatory, and for which violation

carries a price.”

- Rosalyn Higgins5

In a Soldier’s Letter from Hebron of February 2004 we read: “In coping daily with the

madness of Hebron, we couldn’t remain the same people beneath our uniforms. We

saw our buddies and ourselves slowly changing. Caught between a rock and a hard

place.”6 – In 2009 the Red Cross lauched a campaign based on the premise that “Our

World” faces umprecedented challenges, from conflicts and mass displacement to cli-

mate change and migration; it contends that “Your move” reminds us of our collective

responsibility to make the world a better place. And it concludes: “Like Henry Dunant, 4 A. Schweitzer, Kultur und Ethik (1923), Munich, Beck, 1990, p. 64.

5 R. Higgins, “International Law and the Avoidance, Containment and Resolution of Disputes”, Recueil des

cours, Vol. 230 (1991), p. 23.

6 Y. Saul, Breaking the Silence: Soldiers Speak Out about Their Service in Hebron, Jerusalem, 2004. Available

at: <http://www.shovrimshtika.org>, accessed August 2010.

9

we can all make a difference even through the simplest of gestures.”7 This is the stuff

from which the thoughts are made which are assembled in the text that follows: the

dehumanizing character of war on the one hand and the individual responsibility of

everyone to relieve human suffering on the other.

The text I have elaborated and you are about to read emerged from a course I

recently taught at The Hague Academy of International Law. The features of origin –

the style of lectures addressed at a broad audience, the “genius loci” of the institution

where the teaching took place and my personal involvement are still present, and this

by intention:

As my students were rooted in the world’s various legal cultures, and had been

educated in systems that were very different from one another, I made a con-

scious attempt not to be “eurocentric”; and because of the variety of their in-

terests, I tried not to be excessively technical but to introduce them to some

broader, cross-disciplinary methods of thought. I also tried to preserve throughout

the text, at least in parts, the original lecture style so as to keep my message

simple and understandable.

The place of the lectures, the Peace Palace of The Hague, contributed in no

small measure to the “ambiance” of the teaching and to my sense of having been

granted a rare and wonderful opportunity. The Hague was the site – in 1899 and

1907 – of two important peace conferences that were of great relevance to the

subject of the course that I taught in August 2008. And, since 1923, lectures have

been held at the Peace Academy in The Hague, some of which have become

very famous. Astonishingly, only a comparatively small portion of these lectures 7 ICRC, Our World, Views from the Field, Summary Report : Afgahanistan, Columbia, Democratic Republic of

the Congo, Georgia, Haiti, Lebanon, Liberia and The Philippines, Opinion Survey and In-Depth Research

2009, Ipsos/ICRC, 2009, p. 2.

10

was in the spirit of the “Hague Conferences” and devoted to International Human-

itarian Law.In fact, only about 20 of the roughly 1200 courses focused on that

law8. Throughout the existence of the League of Nations, and in the first few

years after the establishment of the United Nations, international lawyers tended

not to interest themselves in the issues raised by war. They preferred to dream

about “droit international et la paix.”

8 H. Wehberg, “La guerre civile et le droit international”, Recueil des cours, Vol. 63 (1938); H.A. Smith, “Le

développement moderne des lois de la guerre maritime”, Recueil des cours, Vol. 63 (1938); R. Sandiford,

“Evolution du droit de la guerre maritime et aérienne”, Recueil des cours, Vol. 68 (1939); A. Gardot, “Le droit

de la guerre dans l'oeuvre des capitaines français du XVIe siècle”, Recueil des cours, Vol. 72 (1948); J.S. Pic-

tet, “La Croix-Rouge et les conventions de Genève”, Recueil des cours, Vol. 76 (1950); M.A. Marin Luna,

“The evolution and present status of the laws of war”, Recueil des cours, Vol. 92 (1957); H. Coursier, “L'évo-

lution du droit international humanitaire”, Recueil des cours, Vol. 99 (1960); B.V.A. Röling, “The law of war

and the national jurisdiction since 1945”, Recueil des cours, Vol. 100 (1960); R. Pinto, “Les règles du droit in-

ternational concernant la guerre civile”, Recueil des cours, Vol. 114 (1965) ; G.I.A.D. Draper, “The Geneva

conventions of 1949”, Recueil des cours, Vol. 114 (1965); S. E. Nahlik, “La protection internationale des biens

culturels en cas des conflits armés“, Recueil des cours, Vol. 120 (1967) ; A. Migliazza, “L'évolution de la ré-

glementation de la guerre à la lumière de la sauvgarde des droits de l'homme”, Recueil des cours, Vol. 137

(1972); R.-J. Wilhelm, “Problèmes relatifs à la protection de la personne humaine par le droit international

dans les conflits armés ne présentant pas un caractère international”, Recueil des cours, Vol. 137 (1972); D.

Schindler, “The different types of armed conflicts according to the Geneva conventions and protocols”, Re-

cueil des cours, Vol. 163 (1979); G.I.A.D. Draper, “The implementation and enforcement of the Geneva

conventions of 1949 and of the two Additional Protocols of 1978 [sic]”, Recueil des cours, Vol. 164 (1979); S.

E. Nahlik, “L'extension du statut de combattant à la lumière du protocole I de Genève de 1977“, Recueil des

cours, Vol. 164 (1979); G. Abi-Saab, “Wars of national liberation in the Geneva Conventions and Protocols”,

Recueil des cours, Vol. 165 (1979); N. Ronzitti, “Le droit humanitaire applicable aux conflits armés en mer”,

Recueil des cours, Vol. 242 (1993); D. Momtaz, “Le droit international humanitaire applicable aux conflits ar-

més non internationaux”, Recueil des cours, Vol. 292 (2001); T. Meron, “International law in the age of human

rights”, Recueil des cours, Vol. 301 (2003).

11

Lastly, I felt it a singular piece of good fortune to be able to lecture at the Hague

Academy on a subject that has never ceased to fascinate me. I am a member of

the International Committee of the Red Cross which is held to be the “guardian”

of international humanitarian law.9 As a member of the governing board of the in-

stitution, I have some knowledge of the way international humanitarian law works

in practice. However, in these lectures, I shall be emphasizing some of the more

“theoretical” aspects of this body of law. I believe that all good practice of law

must be rooted in good theory or philosophy. While designing the course – its

substance and its style – I had in my mind an audience of non-specialists with

broad interests, a general reader as it were. I did not want to waste time on legal

subtilities and, whenever I could, I avoided the use of jargon.

International humanitarian law, or the laws of war as it was once known, is per-

haps the oldest branch of international law. But it seems to me that, in many respects,

it is in need of a fresh approach. “If international law is, in some ways, at the vanishing

point of law, the law of war is, perhaps even more conspicuously, at the vanishing

point of international law”10: thus runs Sir Hersch Lauterpacht’s famous statement.

However, in my lectures I intended to demonstrate that international humanitarian law

has come to occupy a central position in public perceptions of international law as well

as within the framework and structure of international law itself.

9 See e.g. F. Bugnion, The International Committee of the Red Cross and the Protection of War Victims, 2nd

ed., Geneva, International Committee of the Red Cross, 2002.

10 H. Lauterpacht, “The Problem of the Revision of the Law of War,” in E. Lauterpacht (ed.), International Law:

The Collected Papers of Hersch Lauterpacht, Vol. 5, Cambridge, Cambridge University Press, 2004, p. 605.

12

This text deals with both the theory and the practice of international humanit -

arian law. Cicero said: “Inter arma silent leges,” which may be translated as “In war

there is no law.” In the nineteenth century, Count Helmuth von Moltke wrote: “In war,

as in art, there is no general norm; in both cases talent cannot be replaced by rules.

General dogmas or rules deduced from them or systems built upon them can therefore

in no way have any practical value for strategy. Strategy is not like abstract science.

Those have their fixed, defined truths on which one can construct arguments, from

which one can make deductions.”11 It is the aim of my reflections to demonstrate how

wrong Cicero and Helmuth von Moltke were; I did so by summarizing the extraordinary

developments in international humanitarian law since antiquity.

Our theme is international humanitarian law, which may be something of a eu-

phemism. Another term for it is “the law of armed conflict”. I have already mentioned

that, in earlier times this branch of international law was, perhaps more realistically,

known as the “laws of war”.

There is a great deal about war and violence in this book. War or organized vi-

olence is as old as mankind. The motives for going to war are various: national glory, a

leader’s wish for self-aggrandizement, conquest, control and supply of resources,

greed, ideology, ethnic rivalry or hatred are only some of them.

Wars are usually brutal affairs. The suffering they cause is seldom foreseen by

those who start them. The Second World War was perhaps the most destructive war

of all. One may say that it was characterized by two kinds of war fought simultan-

eously: one across international borders between the Axis and the Allied Powers and

11 Quoted in D. Kennedy, Of War and Law, Princeton, Princeton University Press, 2006, pp. 43 et seq.

13

another by the Nazi regime against Jews and other groups that they wished to des-

troy. The community of States responded in two ways. First, it created a reformed sys-

tem of international law within the United Nations whose aim was to fight the “scourge

of war”12. And second, with the Holocaust in mind, it began to develop a system of hu-

man rights law.

The decades since the Second World War seem to me to have been, on the

whole, a comparatively peaceful period in human history. But it must not be forgotten

that even during this period, human beings were systematically and deliberately killed

on a scale that is scarcely believable: in particular, genocides and ethnic cleansing

took place in Cambodia (between 1.4 and 2.2 millions deaths), the former Yugoslavia

(about 200,000 deaths) and Rwanda (about 800,000 deaths).

With the NATO intervention in Kosovo a new or post-modern type of warfare

came into being: NATO forces made unprecedented use of high technology in the

form of satellite-guided, TV-monitored unmanned aircraft and precision (or “smart”)

weapons. It is important to say that these weapons caused far fewer deaths and casu-

alties, at least on one side of the hostilities13. Another feature of modern wars is that

they receive worldwide media coverage. Violence on the international level attracts the

media who, one might say, present it as entertainment for vast, passive audiences. It

is as if war had become a spectacle, designed to amuse the solitary television

viewer14.

12 “(…) to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold

sorrow to mankind.” From the Preamble to the Charter of the United Nations of 26 June 1945.

13 W.K. Clark, Waging Modern War, Bosnia, Kosovo, and the Future of Combat, New York, PublicAffairs,

2001, pp. XX et seq.

14

Wars have always been fought in accordance with certain norms. It is one of

the astonishing facts of history that, to a great extent, wars were not chaotic affairs –

despite outward appearances to the contrary – but governed by rules. The challenge

of international law is to bring warfare within the framework of law, to limit the effects

of war. “You do believe, don’t you, that this monster we call war can be tamed by

means of the law? And that humanitarian law is capable of helping us up those steps

that lead to a higher level of civilization?” That is what Jean Pictet – longstanding vice-

president of the ICRC and a towering figure in this field of law – asked me when I vis-

ited him at his house in Geneva shortly after becoming a member of the Committee.

“Even wars have limits”: this was the motto that the International Committee of the

Red Cross chose when, in 1999, it celebrated the 50th anniversary of the 1949

Geneva Conventions. The course I taught in The Hague was driven by my belief in the

idea of law and my commitment to it.

This text is divided into seven chapters. The first chapter sets out the structure

of international humanitarian law as it is traditionally understood. It deals with specific

aspects of international humanitarian law as they have developed and crystallized

over the course of history. This will be the starting point for the more detailed discus-

sions that will follow.

The second and third chapters are concerned with the two main branches of in-

ternational humanitarian law. Chapter two examines the constraints imposed on belli-

gerents regarding means and methods of warfare, and chapter three the protection

that victims are afforded during armed conflict. The rules of constraint may be called,

14 See, e.g., D. Thürer, „Vom Kampf der Bilder und dem Bild des Krieges“, in ibid., Völkerrecht als Fortschritt

und Chance – Grundidee Gerechtigkeit – Band 2, Zurich/Baden-Baden, Dike/Nomos, 2009, pp. 279 et seq.

15

as Oscar Schachter - an earlier lecturer at The Hague – did, “cold law.” The rules of

protection may be called “hot law”15. In both cases I shall also deal with implementa-

tion: it is futile to discuss matters of law if the rules do not guarantee a minimum de-

gree of effectiveness.

The fourth chapter treats matters that are, strictly speaking, non-legal: it at-

tempts to explore how religions are essential material sources of international human-

itarian law and, in certain cases, obstacles to it. I focus on all the great world religions

(or systems of belief): Confucianism, Hinduism, Buddhism, Judaism, Christianity and

Islam.

The fifth chapter, too, takes a broad approach to international humanitarian law.

It discusses the implications of changes in the methods of warfare for the laws of war,

and the role played by economic considerations in modern warfare. The chapter also

discusses whether this body of law can adequately meet the challenges that have

arisen from war in a global era. The focus is on certain subjects: the phenomenon of

new actors in warfare, the role played by natural resources, the arms trade and the dif -

ficult question of responsibilities.

Chapter six addresses an important new issue: the rules and principles that

govern war are no longer the exclusive responsibility of States or the International

Committee of the Red Cross. In recent years, the contributions of institutions and act-

ors of various kinds to the development, promotion and dissemination of humanitarian

law, has been growing steadily. A global network of actors in international humanit-

15 O. Schachter, “International law in theory and practice: General course in public international law”, Recueil

des cours, Vol. 178 (1982), pp. 41.

16

arian law has emerged. Chapter six provides a consideration of the role played by

them. It pays particular attention to various bodies of the United Nations, the European

Union, the Council of Europe, NGOs and finally to the media.

The seventh and last chapter attempts to situate international humanitarian law

within the international legal system more generally. The so-called "Martens Clause" in

particular raises questions concerning the foundations and the future orientation of in-

ternational humanitarian law and of international law. Should, for example, "general

principles of law" not be given more weight as a formal source of international law?

And could international humanitarian law through a "constitutional" understanding oc-

cupy a more central place within the international legal system?

I should acknowledge here the undercurrent of scepticism that runs through this

text. It surfaces in various connections and has to do with my doubts about the ad-

equacy of the doctrine of sources out of which the entire system of contemporary inter-

national law has been built. In its orthodoxy, does this doctrine not reflect the political

“realities” and the spirit of the nineteenth century, of the world view of Koskenniemi’s

“Gentle Civilizer of Nations”16? Would we not be truer to the realities of this age of

“globalization” if we took a few steps back from the world of positivism and considered

whether “the international community” should not now be our point of reference rather

than “the community of States,” or whether “human conscience” and not “the will of

States” should be considered the ultimate source, the “point of Archimedes”, in all our

thinking about international law? Are not, for the conception of modern international

law, Vitoria, Suarez, Grotius or Gentili more relevant than more recent thinkers like

Triepel or Anzilotti? Is not, now, international humanitarian law the most fertile soil for

16 M. Koskenniemi, The Genle Civilizer of Nations – The Rise and Fall of International Law 1870-1960, Cam-

bridge, Cambridge University Press, 2001.

17

new ideas on these subjects? The challenge posed to the international community by

nuclear weapons can, after all, be met more adequately by referring to the “con-

science of mankind” than to the law of treaties or customary international law.

This text deals with the substance of applicable law in a broad sense, referring,

for example, to human rights law and the law of arms control. But it does so only in or-

der to make clear the relationship of international humanitarian law to these other bod-

ies of law. While I elaborate the principles of law, I also try to open up new avenues for

action. And while the principles are presented as they stand, I also occasionally offer

new perspectives on old questions. On the whole, the book is devoted to the idea of

the "rule of law".

I attempt, throughout the text, to analyse law as it is today, but I also ask how it

might be developed in order to serve the human community better in times to come.

Alexander Pope, an eighteenth-century English poet, avers in An Essay on Man that

“Whatever is, is right.” It may be that Bernard Shaw was reacting to such quietism

when he put the following words in the mouth of a character in his play, Back to Meth-

uselah: “You see things: and you say, ‘Why’? But I dream things that never were; and I

say, ‘Why not?’”.

18

CHAPTER ONE

INTERNATIONAL HUMANITARIAN LAW: A UNIQUE REGIME

„So wenig die Sprache und Civilisation einer Nation in

Folge einer Kriegserklärung plötzlich verschwindet

und in die ursprüngliche Rohheit und Barbarei

zurücksinkt, ebenso wenig kann die Rechtscultur, das

Erzeugnis einer Arbeit von Jahrhunderten auf einmal

wieder erlöschen und ein Zustand völliger

Rechtlosigkeit an seine Stelle treten.“

- Johann Caspar Bluntschli17

“No doubt the sentiment (of lines of logical develop-

ment) is powerfully reinforced by what is often noth-

ing but an intellectual passion for elegantia juris, for

symmetry of form and substance.”

- Benjamin N. Cardozo18

The aim of international law has been described as replacing war by a system

of peaceful co-existence and cooperation among States (and other subjects of interna-

tional law) based on institutions, procedures and rules of conduct. The elimination of

war by international law was a guiding ideal of the League of Nations. The League’s

efforts to abolish war had at times “flowed in a veritable river of hope”19.

17 J.C. Bluntschli, Das moderne Völkerrecht der civilisirten [sic] Staaten, 3. Aufl., Nördlingen, Beck, 1878, p.

296.

18 B.N. Cardozo, The Nature of the Judicial Process, New Haven, Yale University Press, 1921, p. 34.

19 P.C. Jessup, “A Half-Century of Efforts to Substitute Law for War”, Recueil des cours, Vol. 99 (1960), pp. 3

et seq.

19

Since then, however, international law has become much more complex and di-

versified. But the use of force is still, explicitly or implicitly, one of its major concerns.

While trying to effect a total ban on armed conflict, modern international law does not

ignore the fact that war nevertheless occurs. Its approach is both idealistic and real-

istic. Should the prohibition against armed conflict be ignored, international law is not,

as it were, rendered impotent. It has another means to ensure that armed conflict does

not result in unchecked destruction: International humanitarian law, the purpose of

which is to infuse to the greatest extent possible the conduct of war with the civil ethics

of life.

I. Jus ad bellum and jus in bello

Modern international law thus – realistically and pragmatically – offers two types

of response to the challenges of war: a set of rules known as jus ad bellum and an-

other called jus in bello20. The aim of both is to limit war and to reduce the suffering

caused by it. Jus ad bellum - droit à la guerre in French and in English “the right to

wage war” - deals with the decision to resort to war. Its purpose is to limit recourse to

military force. On the other hand, jus in bello - droit dans la guerre in French and in

English “law in war” - applies once jus ad bellum has failed to achieve its – ultimate –

purpose, meaning that an armed conflict is under way. It deals with the military con-

duct of hostilities and its aim is to humanize war as much as possible.

20 H.-P. Gasser, “International humanitarian law,” in H. Haug (ed.), Humanity for all: The International Red

Cross and Red Crescent Movement, Berne/Stuttgart/Vienna, Paul Haupt, 1993, pp. 506 et seq. Cf. for a com-

bined functional approach K. Ipsen, “International Law Preventing Armed Conflicts and International Law of

Armed Conflict – A Combined Functional Approach”, in C. Swinarski (ed.), Studies and Essays on Interna-

tional Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/Mar-

tinus Nijhoff, 1984, pp. 349 et seq.

20

Jus ad bellum underwent a revolutionary change following the Second World

War.21 The rules of classic international law, which emerged from the Peace of West-

phalia (1648), had recognized the right of States, by virtue of their sovereignty, to en-

gage in war as they pleased. Thus, the jus ad bellum was essentially a free-for-all.

Previously, following the doctrines developed by theologians and philosophers in the

Middle Ages, a distinction used to be made between “just” and “unjust” wars, and only

the former were considered lawful22. However, the United Nations Charter, for the first

time in history, prohibited – as a general rule – the threat or use of force in interna-

tional relations. Using domestic legal systems as a model, the framers of the Charter

granted the Security Council of the United Nations a monopoly on the proper use of

force on an international level23. Apart from military force exercised or sanctioned by

that body, the only military action by a State against another State that is considered

lawful is that which is undertaken in self-defence.

Unlike that of the jus ad bellum, the development of the jus in bello was consist-

ent.24 In fact, the jus in bello is one of the oldest branches of international law. It limits

the choice of means and methods of warfare, and protects those affected by hostilit-

21 See in this context M. Byrer, War Law – Understanding International Law and Armed Conflict, New York,

Grova Press, 2005; M. Walzer, Arguing about War, New Haven and London, Yale University Press, 2005, pp.

3 et seq.

22 The humanist thinker Hugo Grotius identified three “just” causes for resorting to war: self-defence, recovery

of property, and punishment for crimes. But he also, unambiguously, limited the circumstances in which re-

sorting to war was permissible (De Jure Belli ac Pacis, Second Book, Chapter 1-II, 1625).

23 Chapter VII of the Charter of the United Nations.

24 As systematic treatises see N. Ronzitti, Diritto Internazionale dei Conflitti Armati, terzo editione, Torino,

Giappichelli editore, 2006; L. C. Green, The Contemporary Law of Armed Conflict, 2nd ed., London,

Manchester University Press, 2000.

21

ies.25 Jus in bello, or International Humanitarian Law is the most important body of in-

ternational law applicable in armed conflict. Today, it applies not only to international

armed conflict, but also to civil wars (non-international armed conflicts). In its Tadic de-

cision (1995), the International Criminal Tribunal for the former Yugoslavia provided

this definition of an armed conflict:

“[An] armed conflict exists whenever there is a resort to armed force between States or

protracted armed violence between governmental authorities and organized armed

groups or between such groups within a State.”26

While under the outdated “just war” doctrine, the rights and duties of the belli-

gerents depended on the question of whether their cause was “just” or “unjust”, the jus

in bello is not linked to, or dependent on, the rules concerning the initiation of hostilit -

ies. It is not affected by a breach of the ius ad bellum. It regulates warfare, regardless

of whether a particular war is “just.” Under the jus in bello, all the parties to a conflict

have the same rights and are obliged to respect the same obligations.27 Rules of war

call for restraint even when an adversary has committed atrocities, or when a State

has been the subject of an unjust attack and therefore is reluctant to restrain itself28.

One reason for the strict separation of the two legal regimes29 – jus ad bellum and jus 25 For a general account of international humanitarian law supplemented by plenty of pertinent cases, documents

and teaching materials see: M. Sassòli, A.A. Bouvier and S. Carr, How does law protect in war?, 2nd edition,

Geneva, International Committee of the Red Cross, 2006.

26 ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction

of 2 October 1995, Case No. IT-94-1-AR72, para. 70.

27 M. Sassòli, „Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and

Humanitarian Rules to be Respected in Warfare: Crucial or Outdated?”, in M. Schmitt and J. Pejic (eds), In-

ternational Law and Armed Conflict: Exploring the Faultlines, Leiden/Boston, Nijhoff, 2007, pp. 242-264.

28 L. May, War Crimes and Just Wars, Cambridge, Cambridge University Press, 2007, pp. 2 and 25.

29 M. Sassòli, “Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and

Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?”, in M. Schmitt and J. Pejic (eds), Inter-

22

in bello – is that it is often difficult to decide which party’s use of force is “just” or lawful

and which one’s “unjust” or unlawful. Can a general, a soldier, a statesman, a politi -

cian or even a historian say with certainty whose cause was legitimate?30 It is – so an-

other argument runs – neither viable nor sensible to make the applicability of the law

of war dependent on the justness of its cause. That is because it would be absurd, not

to say unjust in the extreme, to make the protection of war victims, who very often

have no say in the decision to resort to war, dependent on whether their rulers’ de-

cision to go to war was “just”. It might be added that to extend the protection of the law

only to those who fight for a “good cause” might fuel their zeal to fight and to go on

fighting and thus to prove that justice is on their side. A war must not turn into a Gotte-

surteil, a trial by ordeal. Did not an English author once write: “The more heavenly the

goal, the more devilish the means”?

II. Origins and development

A. Formative ideas

The rules of international humanitarian law that are applicable today are largely

– if not exclusively31 – the product of the legal culture of the second half of the nine-

national Law and Armed Conflict: Exploring the Faultlines – Essays in Honour of Yoram Dinstein, Martinus

Nijhoff, Leiden/Boston, 2007, pp. 241 et seq.; see for a critical approach to the distinction between ius in bello

and ius ad bellum I. Shearer, “A Revival of the Just War Theory?”, in M. Schmitt and J. Pejic (eds), Interna-

tional Law and Armed Conflict: Exploring the Faultlines – Essays in Honour of Yoram Dinstein, Martinus

Nijhoff, Leiden/Boston, 2007, pp. 1 et seq.

30 See ibid., p. 30: “If it is difficult for theorists, many years after the fact, to determine whether a State had just

cause to wage a war, we cannot reasonably expect soldiers during wartime to make such a determination. In

any event, soldiers are required to follow orders and generally have few choices but to do so.”

23

teenth century32. In 1859, Henri Dunant, a citizen of Geneva, happened to witness the

aftermath of one of the bloodiest battles of the century, at Solferino in Italy. Three

years later, in A Memory of Solferino he gave his account of what he had seen.

Dunant – a tourist, as he described himself later – had walked across the field where

the French and Austrian armies had clashed. Shocked by the suffering of the wounded

soldiers who lay abandoned on the field, he tried to organize nearby villagers (women

and other members of “civil society,” as we might say today) in order to bring them re-

lief. Shortly afterwards, in 1862, Dunant gave the world his plan for protecting

wounded and sick soldiers. But he was not content with philanthropy. He proposed

that the rules he had suggested be codified in an international treaty. Dunant’s idea

rested on three pillars. The first was his belief in the ability of the law to limit and con-

trol violence, a conviction that was in marked contrast to the attitudes of the period.

The second was his enlightened belief in universal values such as the idea that enemy

combatants who fell into one’s hands should be treated in accordance with the same

principles as one’s own military personnel (traditional rules and customs of warfare re-

quired this only within one’s own cultural sphere, among Christians or Muslims, for in-

stance). The third pillar – and a vital aspect of Dunant’s personal philosophy – was the

emphasis on the individual human being. This approach implied an unprecedented de-

gree of intrusion into the previously sacrosanct sphere of State sovereignty33. Dunant

was the creator of the International Committee of the Red Cross and, in a way, one of

the first and most powerful precursors of modern civil society. He was ahead of his

31 Basic ideas of international humanitarian law had been to a substantial degree anticipated and shaped by early

international legal scholars, especially in the Age of Humanism and during the Enlightenment.

32 See D. Schindler, “International humanitarian law: Its remarkable development and its persistent violation”,

Journal of the History of International Law, Vol. 5 (2003), pp. 165 et seq.

33 J. Pictet, Le droit humanitaire et la protection des victimes de la guerre, Leiden, A.W. Sijthoff, 1973.

24

time. The world has since caught up with him, partly the result of the human rights re-

volution in international law.

B. The Law of Geneva and the Law of The Hague

Broadly speaking, three kinds of motives have inspired the recognition and ap-

plication of the law of war throughout history. First, self-interest based on the idea of

reciprocity: a party wishes to have its own forces protected by the enemy and there-

fore is willing to grant the same protection to those of the enemy. There is a constant

fear that violations of the law by one’s own forces would cause retribution in kind.

Second, codes of honour for combatants: examples worth mentioning are found in

Europe in the Middle Ages, in India under the Code of Manu and in most other cul-

tures. A third motive for recognizing and applying the law of war may be ascribed to

ideals of humanity. These were – and still are – the ideas underlying the development

of international humanitarian law.

Humanitarian law originally consisted of two bodies of law: the “Law of Geneva”

(named after the original Geneva Convention of 1864, which eventually developed into

the much more far-reaching Geneva Conventions of 1949) and the “Law of The

Hague” (named after the peace conferences held in The Hague in 1899 and 1907).

The “Law of Geneva” concerns itself with the protection of victims of war: wounded

and sick soldiers, prisoners of war and civilians, and combatants who are hors de

combat. In contrast, the rules governing the means and methods of warfare, most of

them codified by the 1907 Hague Peace Conference, are central to the “Law of The

Hague.” To draw a clear-cut distinction between the “Law of Geneva” and “the Law of

The Hague” is no longer possible because Additional Protocols I and II of 1977, which

25

have further developed and thereby integrated the two bodies of law, contain provi-

sions both for the protection of victims and for regulating the means and methods of

warfare.34 The distinction, however, is still common and, it must be admitted, has a di-

dactic value.

III. Specific aspects

Many international lawyers regard international humanitarian law as a highly

specialized field of law containing many legal documents and provisions formulated in

detail in a language that is not easily accessible (the Geneva Conventions alone con-

sist of over 400 articles and numerous annexes). But international humanitarian law

constitutes – as Georges Abi-Saab has established with great lucidity35 – a specific

model of law, the significance of which goes beyond the realm of humanitarian law

with its many rules. There are, one might say, six key aspects of international humanit-

arian law:

First, the human person is assigned the highest value. Individuals are protected

and assisted when they suffer the effects of armed conflict. To a significant degree,

human beings clearly possess individual rights under international humanitarian law.

In no other field of international law was the idea expressed at such an early stage and

34 See the ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports

1996, para. 75: “These two branches of the law applicable in armed conflict have become so closely interre-

lated that they are considered to have gradually formed one single complex system, known today as interna-

tional humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the

unity and complexity of that law.”

35 G. Abi-Saab, “The specificities of humanitarian law”, in C. Swinarski (ed.), Studies and Essays on Interna-

tional Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/Mar-

tinus Nijhoff, 1984, pp. 265 et seq.

26

so clearly that, beyond all technical considerations, the point of the law is to serve the

individual, in this case the victims of armed conflict36. Humanitarian law is based on

common values – if I might borrow this expression from Rosalyn Higgins – “that speak

to us all”37. It addresses our common humanity. It recognizes the wounded combatant

as a human being, and one in need of our help, even if he or she belongs to the en-

emy. Every wounded combatant could – so the reasoning goes – be my own father or

child or some other relative.

Second, by virtue of their logic, the rules of international humanitarian law as-

pire to universality. They are applicable not only within a particular community of na-

tions or within other communities based on shared values but across cultural and geo-

graphical boundaries, and even across lines of battle. It is important to note that the

rules of international humanitarian law are minimal norms that must be respected with

regard to an adversary. This aspiration to universality is matched by the almost univer-

sal approval of the rules of IHL: almost every State has accepted the key instruments

of this body of law.

Third, international humanitarian law developed into a system of objective rules

that had moved away from its previous contractual basis and is now guided by its own

intrinsic purpose. A fundamental principle is laid down in Article 1 common to the four

Geneva Conventions (common Article 1): it stipulates that the Conventions’ provisions

36 We can find this idea in the writings of even the earliest international legal scholars. Concluding his famous

work, De Jure Belli ac Pacis, Hugo Grotius wrote: “(…) in the prosecution of war we must never carry the

rage of it so far, as to unlearn the nature and dispositions of men.” (Third Book, Chapter 25- II, translated by

A. C. Campbell, London 1814).

37 R. Higgins, op. cit., supra note Error: Reference source not found.

27

must be complied with “in all circumstances”38. This means that under the Conven-

tions, States are obliged to renounce reciprocity and reprisal, both of which had long

been the means of punishing breaches of the law. But in IHL both are now prohib-

ited39.

Fourth, the same jus in bello rules apply equally to all parties in a conflict: the

choice of means available to the party that is attacked is as limited as that available to

the aggressor. The law of war imposes equal responsibilities on lawful and unlawful

belligerents.

Fifth, the rules of international humanitarian law are binding, erga omnes40,

which means that all States, even those unaffected by hostilities, may protest against

violations and demand compliance. This fundamental principle is also laid down in

common Article 1, which obliges States Parties “to respect, and ensure respect for”

(emphasis added) the provisions of the four Geneva Conventions. Protecting people

affected by war is thus conceived of as a matter of public concern within the interna-

tional community41.

38 L. Boisson de Chazournes and L. Condorelli, “Common Article 1 of the Geneva Conventions revised: Protect-

ing collective interests,” International Review of the Red Cross, Vol. 82, No. 837 (2000), pp. 67 et seq.

39 T. Meron, “The humanization of humanitarian law”, American Journal of International Law, Vol. 94 (2000),

pp. 247 et seq.

40 J.A. Frowein, “Reactions by not directly affected States to breaches of public international law”, Recueil des

cours, Vol. 248 (1994), pp. 345 et seq.

41 L. Boisson de Chazournes and L. Condorelli, op. cit., supra note Error: Reference source not found.

28

Sixth, the basic norms of international humanitarian law are generally recog-

nized as having a peremptory status, of jus cogens42, in the hierarchy of norms in inter-

national law. International humanitarian law is designed to cope with the extreme cir-

cumstances that arise during war. As is the case with certain fundamental human

rights norms, such as the prohibition of torture, the basic norms of international hu-

manitarian law may not be restricted and no derogation from them is permitted. The

balance between principles and limitations that is included explicitly in the guarantees

of the human rights systems is also incorporated into international humanitarian law

provisions. The rules of international humanitarian law are absolute.

It should be obvious from the foregoing that international humanitarian law con-

tains some of the most fundamental rules of international law. Its basic norms take

precedence over all other legal considerations, overriding some of the oldest principles

of international relations and incorporating universal values. Since its advent, interna-

tional humanitarian law has had a progressive effect on the development of interna-

tional law; it has also anticipated the emergence of the individual as a subject of inter-

national law. Within international law, some norms are more important than others; but

all of them yield precedence to the basic provisions of international humanitarian law.

One might therefore be tempted to ask whether they form part of a constitutional core

in international law43. I shall return to this question in the concluding chapter.

42 L. Condorelli, A.-M. La Rosa and S. Scherrer (eds), The United Nations and International Humanitarian Law,

Proceedings of the international symposium held on the occasion of the 50th anniversary of the United Nations

– Geneva, 19-21 October 1995, Paris, Editions Pedone, 1996. See also ICTY, Prosecutor v. Kupreskic, Judge-

ment of 14 January 2000, Case No. IT-95-16-T, para. 520: “(…) most norms of international humanitarian law,

in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms

of international law or jus cogens, i.e. of a non-derogable and overriding character.”

29

At this point, it shall be remembered that international humanitarian law has

contributed to important advances in international law. But the changing nature of con-

flict requires us to reconsider the provisions of international humanitarian law again

and again. Let me now mention three dichotomies underlying and shaping interna-

tional humanitarian law, and the tensions within this body of law.

IV. Three fundamental dychotomies

A. “International” and “non-international” armed conflicts 44

International humanitarian law has its origin in wars between States or “interna-

tional armed conflicts” most notably in the battle of Solferino, which has already been

mentioned as the birthplace of modern international humanitarian law. It developed

further in the aftermath of later wars - the German-French war of 1870/1, for instance,

and both World Wars. However, with the passage of time, the shape of armed conflict

has changed dramatically. Today, few armed conflicts are purely international in char-

acter, and they no longer take place on clearly delineated battlefields. Most armed

conflicts in our time are internal or hybrid - internal/international - in character45. In

spite of this development, the rules concerning international armed conflicts remain far

more elaborate than those designed to regulate non-international armed conflicts: they

are more precise and more sophisticated. This imbalance is now being corrected in

significant measure by a far-reaching study, undertaken by the International Commit-

43 See D. Thürer, “International Humanitarian Law as a Core of a Minimal World Constitutional Order”, in ibid.,

Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2 , Zurich/Baden-Baden, Dike/

Nomos, 2009, pp. 679 et seq.

44 For more details see below Chapter Three.

45 D. Schindler, “The different types of armed conflicts according to the Geneva Conventions and Proto-

cols”[sic], Recueil des cours, Vol. 163 (1979), pp. 117 et seq.

30

tee of the Red Cross, to codify the main rules of customary international humanitarian

law. As these rules are generally the same for both types of armed conflict, the line di -

viding them is becoming more and more blurred46.

This is a favourable development. It means that the victims of non-international

armed conflicts come in for greater protection under international humanitarian law. It

is also a reasonable development. Is it just to make protection for those affected by

hostilities dependent on the character of the conflict? Human beings deserve the same

protection, regardless of whether they are affected by a battle taking place within one

country or across borders. That is why the Security Council and other international

bodies, when demanding respect for international humanitarian law, pay no heed to

the legal classification of a conflict47. And that is also why the Yugoslavia Tribunal re-

fused to apply different standards to different types of conflict48.

However, governments are reluctant to accept constraints in suppressing rebel-

lions. They want to have a free hand in dealing with what they regard as an “internal

affair“. This attitude is understandable, albeit short-sighted. We have already seen

how, in the nineteenth century and in the first half of the twentieth, when international

humanitarian law was developed to regulate “international wars,“ the community of 46 L. Doswald-Beck and J-M. Henckaerts (eds), Customary International Humanitarian Law, Cambridge,

Cambridge University Press, 2005; A. Zimmermann, “Die Wirksamkeit rechtlicher Hegung militärischer

Gewalt – Ausgewählte Aspekte der Anwendbarkeit und Systemkohärenz des humanitären Völkerrechts”, in

Zimmermann / Hobe / Odendahl / Kieninger / König / Marauhn / Thorn / Schmalenbach, Moderne

Konfliktformen – Humanitäres Völkerrecht und privatrechtliche Folgen, Heidelberg, C.F. Müller, 2010, pp. 7

et seq.

47 See below Chapter V.1.

48 See R. Kolb, Ius in bello: Le droit international des conflits armés, Basle, Helbing and Lichtenhahn, 2003, pp.

43 et seq.

31

States agreed to respect its provisions, regardless of whether a party’s cause was

thought to be illegitimate or “unjust”. I wish to repeat that this conception of interna-

tional humanitarian law was facilitated by three insights. First, no one can reliably es-

tablish beyond question whose cause is legitimate and whose is not. Second, dis-

respect for international humanitarian law and the use of brute force by one party are

likely to provoke retaliation in kind by the other side. And third, a legal system based

on neutrality and impartiality tends, by its very existence, to deflate hatred, feelings of

humiliation and revenge and other similar emotions. The same reasoning should be

applied to internal wars. From a government’s point of view, a rebellion is always ille-

gitimate. But that attitude cannot be used to justify limitlessness of choice in the

means and methods used against rebels. And it must not curtail the scope of protec-

tion usually granted to the victims of armed conflict. The vanishing significance of this

first dichotomy in the law of war is therefore to be welcomed.

B. Combatants and non-combatants 49

Another traditional distinction in international humanitarian law can also be

found in two other dichotomies: between combatants and non-combatants and

between military objectives and civilian objects. These two distinctions exist to restrict

on the conduct of war, in order to protect civilians and civil objects. But the realities of

modern warfare increasingly blur long-standing differences in these categories: it is

becoming much more difficult to distinguish one from the other. For instance, is it only

the soldier using the weapon who is a combatant, or should the person operating the

relevant computer system, delivering war material or information etc. also fall into this

category? It is, as we shall see, one of the main challenges of contemporary interna-

49 For more details see Chapter Seven, Section II.

32

tional humanitarian law to shed more light on this ill-lit area of delimiting various kinds

of status in humanitarian law, by developing clearer definitions and applying them to

persons and activities under the changing conditions of modern warfare.

In many circumstances, however, there is no doubt about the civilian status of

war victims. One of the main purposes of modern international humanitarian law is the

protection of civilians. In the European wars of the nineteenth century and the early

years of the twentieth, most of the victims were soldiers. This began to change in the

middle of the twentieth century50. The provisions of the Fourth Geneva Convention of

1949 were a response to the staggering number of civilian deaths during the Second

World War. Even so, in most recent wars, many of them non-international in character,

civilians seem to have shouldered an even greater share of the burden of war. In

some cases, civilians are reported to have made up about 90% of all deaths51. We

may therefore ask how those not taking a direct part in hostilities may be better protec-

ted. And it may be reasonable to ask also whether international humanitarian law has

failed and is currently failing in its mission to protect civilians from the worst con-

sequences of war. We will come back to these questions later on.

Let me conclude this overview with some remarks on specific actors and spe-

cific means of implementation.

50 E.g. during World War II: out of a estimated total dead range from 50 million to over 70 million, civilians

killed ranged from 40 to 52 million, including 13 to 20 million from war-related disease and famine.

51 E.g. the Vienam War (1959 – 1975): estimated total casualties of 2.5, whereas 90% of those killed in Southvi-

etnam were civilians.

33

C. Actors and modes of implementation

As far as actors are concerned, it should be mentioned that international hu-

manitarian law is, first and foremost, applicable to “parties” in armed conflicts, which

include non-State military actors. The ability to pierce the “veil” of sovereignty and to

directly reach organized groups within States is one of the special strengths of interna-

tional humanitarian law when compared to human rights law. Also, the institutional set-

up is different for the two legal systems. The ICRC plays the predominant role in inter-

national humanitarian law. Its delegates are not just “social workers on the battlefield”,

but troisième combatants, (Niklas Luhmann) or “third combatants”52. And it is man-

dated by the international community with the task of developing international humanit-

arian law and monitoring its application; it is, for this purpose, recognized as a subject

of international law sui generis53. The ICRC is regarded as the “guardian” of interna-

tional humanitarian law. However, it has been joined, and is supported, by a growing

number of players in the field: for instance, other components of the International Red

52 The International Committee is the continuation of the Committee of Five appointed by the Geneva Society

for Public Welfare on 9 February 1863. This Committee founded the Red Cross and took the initiative of pro-

moting the original Geneva Convention. Ever since, members who resign or die have been replaced by indivi -

duals chosen by the remaining members, so there has been no break in the International Committee's already

long history. Since 1945 they have numbered between fifteen and twenty-five. The members of the Committee

have always been chosen from among Swiss citizens. The ICRC employs more than 1000 delegates and more

than 10,000 staff members in all. Its annual budget amounts to more than a billion Swiss francs. Its guiding

principles are humanity, neutrality and impartiality and its preferred mode of action is confidential bilateral

dialogue and not the “mobilization of shame.” See, in order to better understand the role of a delegate J.-F.

Berger, Fragments of memory – Memories from ICRC employees in former Yugoslavia, 1991-2001, Vevey,

l’Aire, 2010.

53 Ch. Dominicé, “La personnalité juridique internationale du CICR”, in C. Swinarski (ed.), Studies and Essays

on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague,

ICRC/Martinus Nijhoff, 1984, pp. 663-673.

34

Cross and Red Crescent Movement (National Red Cross and Red Crescent Societies

and the International Federation of Red Cross and Red Crescent Societies), NGOs

like Médecins Sans Frontières, Oxfam, Amnesty International, and Human Rights

Watch. All these organizations participate, in various ways and to different degrees, in

protecting and assisting victims of war. The core functions of the ICRC remain the

same: monitoring conditions of detention and providing humanitarian relief to the vic-

tims of armed conflict. It is one of the principal aims of the ICRC and of other humanit-

arian actors to gain access to victims. One of the challenges the ICRC faces today is

to define and realize its specific role in a fast-growing and crowded field of humanit -

arian actors.54

Support for the implementation of international humanitarian law is growing

markedly: it is provided by a rapidly evolving legal framework. Besides the various

legal and disciplinary mechanisms created within domestic law, international institu-

tions like war crimes tribunals and human rights courts or court-like institutions, as well

as a variety of political bodies and procedures established within international organiz-

ations, are all growing in importance. I would like to mention a specific method for

making international humanitarian law standards work: the concept of a “humanitarian

space”. I see it in the form of a pyramid. The ordinary rules of international humanit-

arian law (black-letter or customary rules) form the base of the pyramid and the prin-

ciples of “independence,” “impartiality” and “neutrality” its walls. The International

Court of Justice has put it more formally. It stated, in the Nicaragua case, that acts

based on core rules of international humanitarian law (common Article 3), and carried

out in accordance with the operative principles that have just been mentioned, namely

54 For more details see Chapter Seven and Outlook.

35

impartiality and non-discrimination, may not be characterized as unlawful interference

into the internal affairs of a State55.

***

Let me conclude this chapter by stressing the importance of the concept of the

“rule of law,” and by stating once again how outdated the views of Cicero and Count

Helmuth von Moltke appear today on the background of modern legal developments.

A passage from a judgment handed down by the Israeli Supreme Court, on the legality

of the delicate, very controversial question of preventive strikes against terrorists,

makes the point emphatically:

“The saying ‘when the cannons roar, the muses are silent,’ is well known. A similar idea

was expressed by Cicero, who said: ‘During war the laws are silent' (silent enim leges

inter arma). Those sayings are regrettable. They reflect neither the existing law nor the

desirable law (…) Every struggle of the State – against terrorism or any other enemy – is

conducted according to rules and law. There is always law which the State must comply

with (…). Indeed, the State’s struggle against terrorism is not conducted ‘outside’ of the

law. It is conducted ‘inside’ the law, with tools that the law places at the disposal of

democratic States.”56

55 See D. Thürer, “Dunant’s pyramid: Thoughts on the ‘humanitarian space’”, International Review of the Red

Cross, Vol. 89, No. 865 (2007); ibid, op. cit., supra note Error: Reference source not found.

56 The Public Committee against Torture in Israel [et al.] v. The Government of Israel [et al.], Israeli High

Court of Justice, The Supreme Court Sitting as the High Court of Justice, Case 769/02, 11 December 2005,

para. 61.

36

CHAPTER TWOCONSTRAINTS OF WAR – HOLDING THE CENTRE 57

“The battles worthy of study and worthy of the battle

honour are not the bloody ones; they are the ones

that yield victory with few casualties.”

- Clausewitz58

57 I borrowed this title from W.M. Reisman, “Holding the Center of the Law of Armed Conflict”, American

Journal of International Law, Vol. 100 (2006), pp. 852 et seq.

58 Quoted by R. Connaughton, A Brief History of Modern Warfare, London, Constable and Robinson, 2008, p. 1.

37

I. General remarks and cardinal principles

A. General remarks

In chapter one, we focused on the structure and the general characteristics of

international humanitarian law. We also said at the outset that – as far as the philo-

sophy and the directive force of legal evolution are concerned – we may distinguish

between two kinds of rule: rules of constraint, which we termed, somewhat casually,

“cold law”, and rules inspired by human values and aspirations, which we may call

“hot law”.”59 These two sets of rules are, of course, interdependent.

In this chapter, we shall tackle “cold law.” These rules are supposed to re-

strain, not to incite60. Their aim is to regulate hostilities, to keep them within certain

boundaries. They are, of course, closely linked to legal instruments on arms control

and disarmament61. The rules of arms control can and should – as we shall demon-

strate later on – be developed and interpreted in the light and in the spirit of interna-

tional humanitarian law in order to be effective.

To the casual observer, war may seem to be a chaotic state of affairs, without

any semblance of order. And so it is often spoken of as a “loss of control” or as a

“breakdown of order”. But conflicts between nations, as Michael Reisman and Chris

T. Antoniou have pointed out, are usually highly organized affairs: antagonists are

59 Cf. O. Schachter, op. cit., supra note Error: Reference source not found.

60 F. Kalshoven and L. Zegveld, Constraints on the Waging of War: An Introduction to International Humanit-

arian Law, 3rd ed., Geneva, ICRC, 2001.

61 Cf. H. Blix, “Reducing the Role and Effects of Weapons”, Speech at the Second Common Wealth Red Cross

and Red Crescent International Humanitarian Law Conference, Wellington, New Zealand, 29-31 August

2007.

38

expected to meet certain commonly shared expectations about the “right way to fight”

- and often even do so62. The same may be said about many civil wars in which or-

ganized armed groups rebel against the government or fight one another. However,

not every war is fought in compliance with mutual expectations. In “failed” or “failing

States” the collapse of law and order, and of all structures of authority, may produce

chaos and anarchy63, allowing combatants to do as they please, unchecked by rules

of any sort. In French, such conflicts are called, quite properly, “conflits déstruc-

turés”64.

In this chapter we shall examine the limits placed on the means and methods

of warfare, and consider the place of arms control in international humanitarian law

and from the perspective of that body of law. Of the many rules regulating warfare,

those of constraint are among the oldest. They are at the heart of international hu-

manitarian law. The idea that certain weapons and certain ways of fighting may not

be used even amidst the seeming lawlessness of war is probably as old as war itself.

For instance, all ancient civilizations regarded the use of poison as a treacherous act

and unacceptable. In ancient Greece, cutting down olive trees was considered a war

crime. And in late antiquity, efforts were made to ban the use of “Greek fire”65. In an-

62 W.M. Reisman and C.T. Antoniou, The Laws of War, New York, Vintage Books, 1994, p. XVII.

63 What is interesting is that non-State actors – guerrilla fighters or national liberation movements in classic in-

surrection type hostilities do fragment more and more into different fractions, regroup into new commands,

are sometimes very loosely structured and sometimes supported by international network. A situation of con-

stant fracturing of non-State actors into shifting groups make it quite difficult to identify all the different act -

ors in a combat zone. A situation in point would be Darfur.

64 D. Thürer, “The ‘Failed State’ and International Law”, International Review of the Red Cross, Vol. 81, No.

836 (1999), pp. 731 et seq.

65 “Greek fire” was an incendiary weapon used by the Byzantine Empire. The Byzantines typically used it in

naval battles to great effect as it could continue burning even on water. It provided a technological advantage,

39

cient India, warriors were not permitted to kill their enemies with weapons that were

barbed or smeared with poison or whose points blazed with fire66. And Indian warriors

of that period were already following one of the basic principles of modern interna-

tional humanitarian law: civilians, combatants who surrender and those who are

wounded and sick must not be harmed.

In Europe, numerous efforts were made during the Middle Ages to curb the

brutality of war and its effects67. For example, when a Pax Dei, or “Peace of God”,

was proclaimed, immunity from violence was granted to non-combatants who could

not defend themselves, especially to peasants and the clergy. A Treuga Dei, or

“Truce of God” (another instrument of restriction), prohibited fighting during certain

days and periods of the year. Attempts were also made to limit the means of warfare:

at the Second Lateran Council of 1139 the use of crossbows and arbalests was

banned, at least in warfare between Christians. And knights in medieval wars usually

fought in accordance with a knightly code of conduct that, inter alia, required them to

take a vanquished opponent prisoner rather than kill him. Quarter was generally

granted; a besieged city could usually surrender and its garrison would be granted

safe evacuation. In early modern times, one of the founding fathers of the law of na-

tions, Hugo Grotius, made the idea of setting limits for the conduct of warfare one of

the centrepieces of the legal framework he established. He criticized the “lack of re-

and was responsible for many key Byzantine military victories, most notably the salvation of Constantinople

from two Arab sieges, thus securing the Empire's survival. See, e.g., J. Haldon and M. Byrne, "A Possible

Solution to the Problem of Greek Fire", Byzantinische Zeitschrift, Vol. 70 (1977), pp. 91 et. seq.

66 Cf. W. Doniger and B.K. Smith (trans.), The Laws of Manu, Penguin Books, London, 1991.

67 See, as a lively account, T. Meron, Henry’s Wars and Shakespeare’s Laws – Perspectives on the Law of War

in the Later Middle Ages, Oxford, Clarendon Press, 1993.

40

straint in relation to war”68. The third book of his monumental work, De iure belli ac

pacis, is entirely devoted to “what is permissible in war”69.

The imposition of limits on the means of warfare in the modern era began with

the St Petersburg Declaration of 1868, which banned the use of explosive projectiles

under 400 grammes that were designed to detonate on contact with a soft substance

- that is to say, the human body. The idea was to ban munitions that caused particu-

larly grave and inhuman injuries. The importance of this Declaration cannot be exag-

gerated. It stated a principle that would become one of the most fundamental in inter -

national humanitarian law: weapons must not cause unnecessary suffering. And it

fixed the “technical limits at which the necessities of war ought to yield to the require-

ments of humanity”70.

More effective and sustainable efforts to codify the means and methods of

warfare were made at the Second Peace Conference in The Hague in 1907 and, af-

terwards, in Protocol I of 8 June 1977 additional to the Geneva Conventions.71 Article

35 of Additional Protocol I contains something of a Grundnorm, or fundamental norm,

on “constraint”:

68 H. Grotius, De iure belli ac pacis, Paris, 1625, Prolegomena, para. 28 (The Latin text reads: Videbam per

Christianum orbem, vel barbaris gentibus pudendam bellanid licentiam: it mentions nothing that can be

taken as equivalent to the term ‘restraints’).

69 H. Grotius, op. cit., supra note Error: Reference source not found, para. 35.

70 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Gramms Weight.

Saint Petersburg, 29 November/11 December 1868.

71 See e.g. H.-P. Gasser, „Die Genevaer Zusatzprotokolle vom 8. Juni 1977“; in C. Swinarski (ed.), Studies and

Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet , Geneva/The

Hague, ICRC/Martinus Nijhoff, 1984, pp. 147 et seq.

41

“1. In any armed conflict, the right of the Parties to the conflict to choose methods or

means of warfare is not unlimited.

2. It is prohibited to employ weapons, projectiles and material and methods of warfare

of a nature to cause superfluous injury or unnecessary suffering.

3. It is prohibited to employ methods or means of warfare which are intended, or may

be expected, to cause widespread, long-term and severe damage to the natural envir-

onment.”

Protocol I has not been ratified by all the major powers. But its most important provi -

sions, such as Article 35, express customary law72.

B. Cardinal principles: The shift from a “horizontal” to a “vertical”, or “quasi-

constitutional”, order

Thus, legal obligations are imposed on combatants; they may not do as they

please. One of the main aims of international humanitarian law is to set constraints

on the conduct of wars and hostilities. Constraint, however, is not an end in itself. It is

only a means of protecting victims of violence, at present and in the future. So setting

constraints on the conduct of war and protecting victims of violence are two sides of

the same coin. In this chapter, we will concentrate on the former.

To begin with: what are the main elements of constraint? There are four over-

arching principles that govern the setting of limits on the conduct of warfare: the prin-

ciples of humanity, military necessity, proportionality and distinction. In conventional

doctrine, they are mentioned side by side and only loosely connected. In this essay,

however, an attempt is made to conceive of these four principles as integral parts of

a structured edifice and to place them, like the doctrines of fundamental rights (in

72 L. Doswald-Beck and J.-M. Henckaerts, Customary International Humanitarian Law - Volume I: Rules,

Cambridge, Cambridge University Press, 2005, pp. 237 et seq.

42

constitutional law) and human rights (in international law), in a consistent, hierarch-

ical relationship.73 In such a framework and from this perspective, the principle of hu-

manity is seen to be, or is seen to be in the process of becoming, the goal of the sys-

tem of international humanitarian law, as well as that of human rights law. This re-

flects a shift in modern international law, away from a “mechanical” and towards a

value-oriented system of rules. From this perspective, humanity is regarded as the

leading principle – belonging to a higher order or representing the “magnetic” point of

reference – towards which all the other elements – the principles of military neces-

sity, proportionality and distinction – are directed and to which they are subordinated.

In other words, humanity is the telos of this set of principles. It shapes the other prin-

ciples of constraint, which are – and this is one of the main points I would like to

make in this chapter – subordinated to and receive their orientation, energy and con-

tent from the principle of humanity74.

We will now tackle each of the four principles. I shall try to give a general idea

of their meaning and implications, and in the process remind the reader of something

that has already been noted: international humanitarian law does not concern itself

with whether wars and episodes of violence are legitimate. It takes effect whenever

violence breaks out. Armed conflict and violence are facts and international humanit-

arian law accepts them as such. The four principles exist to direct the actions of com-

batants and fighters; to whose actions they also grant a significant degree of latitude,

73 See R. Kolb, Ius in bello – Le droit international des conflits armés, Bâle, Helbing & Lichtenhahn,

Bruxelles, Bruylant, 2003, pp. 281 et seq.

74 In the domain of human rights law as in the law of constitutional rights “necessity“ would mean, in such a

human rights-like constitution of the cardinal principles concerning the conduct of hostilities, a legitimate,

overriding social need, “proportionality“ that the means and methods chosen be the appropriate ones in rela-

tion to this recognized need; and “discrimination” may be regarded as a sort of ‘hard core’ or Wesenskern.

43

for this part of the law recognizes and takes into account the complexities that are

likely to arise in many different situations.

C. Humanity

This principle is at the heart of international humanitarian law. For Emer de

Vattel, writing at an early stage in the development of international law, the principle

of humanity seemed to be central:

“N’oublions jamais que nos ennemis sont hommes (…), ne dépouillons point la charité

qui nous lie à tout le genre humain. De cette manière nous défendrons courageuse-

ment les droits de la patrie, sans blesser ceux de l’humanité.”75.

Vattel’s exhortation seems to be just as relevant in modern times, i.e. during

the so-called “war on terror”, as it was some 250 years ago. Emphasizing this funda-

mental value, the International Criminal Tribunal for the former Yugoslavia, in the

Furundzija case, stated that the general principle of respect for human dignity was

the “raison d’être” of both human rights and humanitarian law. I should like to quote

certain crucial sentences:

“The essence of the whole corpus of international humanitarian law as well as hu-

man rights law lies in the protection of the human dignity of every person,

whatever his or her gender. The general principles of respect for human dignity is

(…) the very raison d’être of international humanitarian and human rights law; in-

deed in modern times it has become of such paramount importance as to per-

75 E. de Vattel, Le droit des gens ou principes de la loi naturelle, London, 1758, Buch III, Kapitel VIII, para.

158. Further on he continues as follows: „Ce serait une erreur également funeste et grossière, de s’imaginer

(…) que tout lien d’humanité est rompu entre deux nations qui se font la guerre. Réduit à la nécessité de

prendre les armes pour leur défense et pour le maintien de leurs droits, les hommes ne cessent pas pour cela

d’êtres hommes (…) Celui-là même qui nous fait une guerre injuste, est homme encore; nous lui devons tout

ce qu’exige de nous cette qualité (ibid., para. 174).”

44

meate the whole body of international law. This principle is intended to shield hu-

man beings from outrages upon their personal dignity, whether such outrages are

carried out by unlawfully attacking the body or by humiliating or debasing the

honour, the self-respect or the mental well-being of a person.”76

Article 3 common to the four Geneva Conventions of 1949, which applies in

armed conflicts “not of an international character” and which, in the opinion of the In-

ternational Court of Justice, contains “elementary considerations of humanity”77 - and

which has been described as a “mini-convention” - is worth quoting in this context:

“(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 by sick-

ness, wounds, detention, or any other cause, shall in all circumstances be treated

humanely (…) 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 per-

sons: (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 sen-

tences and the carrying out of executions without previous judgement pro-

nounced by a regularly constituted court, affording all the judicial guarantees

which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.” (emphasis added)

The history of international law is characterized by brutal struggles for peace. Modern

international law recognizes individuals as subjects and objects in their own right. It

seems to me to be important to stress once more that even in the most brutal circum-

stances, rife with atrocities, international humanitarian law preserves a space for con-

siderations of humanity.

76 ICTY, Prosecutor v. Anto Furundzija, Judgement of 10 December 1998, Case Nr. IT 95-17/1, para. 183.

77 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Judgment of 27 June

1986, ICJ Reports 1986, para. 218.

45

D. Military necessity

This is a classical principle of the law of war; it means that violence is permit-

ted only when justified by military necessity. According to the principle of military ne-

cessity, a party to a conflict is entitled to do whatever is necessary to defeat an en-

emy or to win a war. Yet, the rules of international humanitarian law forbid aimless vi -

olence. From a humanitarian perspective, the principle of military necessity may

seem, at first, to be contradicting the principle of humanity. While the latter seeks to

preserve humanity as a goal, the former accepts that some sort of violence and de-

struction is unavoidable in war. The principle of military necessity demands that de-

struction never be arbitrary; it must never become an end in itself, but must always

be justified by the exigencies of war. The principle of military necessity is an expres-

sion of international humanitarian law’s indifference to the question of the permissibil -

ity or legitimacy of war in a specific situation. This body of law accepts armed conflict

as a fact. It is based on the idea that wars have been fought in the past, are being

fought now, and will probably be fought in the future, and that they result in human

suffering and destruction78. However, international humanitarian law as a whole de-

mands that a balance be struck between the “necessities of war” and the “require-

ments of humanity”, an idea that can be found in the old tradition of jus in bello; this

remains an animating principle of contemporary international humanitarian law. The

necessities of war “justify” and limit violence: this was already noted and stated by

Francisco de Vitoria in the 16th century79.

78 See Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge,

Cambridge University Press, 2004, p. 16.

79 H. Slim, Killing Civilians: Methods, Madness and Morality in War, New York, Colombia University Press,

2007, p. 14.

46

Over the centuries, the principle has been reformulated and delimited by sev-

eral authors, amongst them Emer de Vattel, one of the most famous and most cited

legal scholars of the 18th century. In his work, Le droit des gens ou principes de la loi

naturelle, which essentially grew out of, or developed, the Grotian theory, he wrote:

“La fin légitime ne donne un véritable droit qu’aux seuls moyens nécessaires

pour obtenir cette fin; tout ce que va au-delà est réprouvé par la loi naturelle, vi-

cieux et condamnable au tribunal de la conscience.”80

Similarly, in Du Contract Social, Jean-Jacques Rousseau remarks that “La

guerre ne donne aucun droit qui ne soit nécessaire à sa fin.”81 And Francis Lieber, in

his Instructions for the Government of Armies of the United States in the Field: A

Guide to Conduct for Soldiers in the Union Army during the American Civil War

(Lieber Code, 1863), states that the military importance of winning can justify wound-

ing and killing civilians when all possible precautions to protect them have been

taken and if safer ways of fighting have been explored and found wanting82.

80 E. de Vattel, op. cit., supra note Error: Reference source not found, para. 137; and he states further on: “(…)

tout le mal que l’on fait à l’ennemi sans nécessité, tout hostilité qui ne tend point à amener la victoire et la fin

de la guerre, est une licence que la loi naturelle condamne” (para. 172); see also H. Grotius, De iure belli ac

pacis, Paris, 1625 (translated by E. Campbell, London 1814), third book, chapter 11, para. VIII., “(…) yet

humanity will require that the greatest precaution should be used against involving the innocent in danger,

except in cases of extreme urgency and utility”; Ch. Wolff, Grundsätze des Natur- und Völkerrechts, Halle,

Renger, 1754, IV. Teil, 8. Hauptstück, para. 1190: „Deswegen ist dem, der einen rechtmässigen Krieg führet,

dasjenige im Krieg erlaubt, ohne welches er sein Recht nicht erlangen kann. Was aber zur Erreichung dieses

Endzwecks nichts thut, das ist unerlaubt.“

81 J.-J. Rousseau, Du Contrat Social ou Principes du Droit Politique, Amsterdam, MetaLibri, 1762.

82 F. Lieber, Instructions for the Government of Armies of the United States in the Field, Washington D.C.,

Government Printing Office, 1898. Available at: <http://www.loc.gov/rr/frd/Military_Law/pdf/Instructions-

gov-armies.pdf>, accessed August 2010.

47

“Alleviating as much as possible the calamities of war”: this was one of the

aims of the St Petersburg Declaration83. For that purpose the parties agreed “that the

only legitimate object which States should endeavour to accomplish during war is to

weaken the military forces of the enemy” and “that for this purpose it is sufficient to

disable the greatest possible number of men.”84 The Declaration adds that “this object

would be exceeded by the employment of arms which uselessly aggravate the suffer-

ings of disabled men, or render their death inevitable [and] that the employment of

such arms would, therefore, be contrary to the laws of humanity.”85

The principle of military necessity is not a blank cheque; it does not provide le-

gitimacy to all military actions: it is vitally important to understand this. The status,

content and limits of the concept of military necessity are, as we may easily imagine,

highly controversial. Some say that it no longer has any significance of its own, hav-

ing been absorbed by the principle of proportionality. Some give it a broader and oth-

ers a narrower meaning. As this is clearly a contentious issue, it might be interesting

to note that contemporary practice still refers to the concept. “Military necessity” has

been tested and maintained as a principle of constraint in its own right. Two recent

inquiries – one in Lebanon and the other in Gaza – may be quoted as examples that

illustrate how the principle of military necessity is understood.

The Lebanon example. The Commission of Inquiry established by the United

Nations Human Rights Council and mandated to investigate particular aspects

of the war between Israel and Lebanon in summer 2006 explained in its report

that “the principle of military necessity cannot justify every attack or destruc-

83 D. Schindler and J. Toman (eds), Droit des conflits armés: Recueil des conventions, résolutions et autres do-

cuments, Geneva, Institut Henry-Dunant, 1996.

84 Ibid.85 Ibid.

48

tion. The attacks on civilians, destruction of unoccupied houses, churches,

mosques, shops, and so on do not normally contribute to defeating the en-

emy.” The report said also that, in many cases, “the ‘military necessity’ ele-

ment did not justify the military action taken.” And it took the view that “the ex-

cessive, indiscriminate and disproportionate use of force by IDF [Israel De-

fence Forces] goes beyond reasonable arguments of military necessity and of

proportionality, and clearly failed to distinguish between civilian and military

targets.” In particular, the number of houses and residential buildings des-

troyed in southern Lebanon and in South Beirut, the deliberate attacks on

places of worship, churches and mosques and the direct attacks by the IDF on

positions held by the United Nations Interim Force in Lebanon demonstrated

inadequate application of the principles of military necessity and proportional-

ity86. The Commission also found that the use of cluster munitions - 90 per

cent of which were fired by the IDF during the last 72 hours of the conflict -

“was excessive and not justified by any reason of military necessity.” It asser-

ted that “these weapons were used deliberately to turn large areas of fertile

agricultural land into ‘no-go’ areas for the civilian population.”87

The Gaza example: The UN Fact-Finding Mission established in April 2009,

and mandated to investigate violations of international human rights law and

international humanitarian law during the military operations conducted in

Gaza from 27 December 2008 to 18 January 2009, found that the principle of

military necessity was violated in a number of specific incidents. The Mission

“investigated several incidents involving the destruction of industrial infrastruc-

ture, food production, water installations, sewage treatment plants and hous-

ing.” The Mission also found that “the attack on the only remaining flour produ-

cing factory, the destruction of a large part of the Gaza egg production [sic],

the bulldozing of huge tracts of agricultural land, and the bombing of some two

hundred industrial facilities, could not on any basis be justified on military

grounds.”88 One of the broad conclusions reached by the Mission was that “the

Israeli armed forces unlawfully and wantonly attacked and destroyed without

86 “Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1”, 23

November 2006, UN Doc. A/HRC/3/2, para. 116-129.

87 Ibid., Summary, para. 24-25.

49

military necessity a number of food production or food processing objects and

facilities (including mills, land and greenhouses), drinking-water installations,

farms and animals in violation of the principle of distinction.”89 Israeli political

and military leaders justified the attacks by pointing out that they strike at the

“Hamas infrastructure.” This view, of course, completely subverts the whole

purpose of international humanitarian law.

With regard to the destruction of the only flour mill in Gaza that was still oper-

ating, the Mission found that “the nature of the strikes, in particular the precise

targeting of crucial machinery, suggests that the intention was to disable the

factory’s productive capacity” and “that the destruction of the mill was carried

out to deny sustenance to the civilian population.”90 With regard to the destruc-

tion of a chicken farm, the Mission reported that the farm supplied more than

10 per cent of the Gaza egg market. According to the report, “armoured bull-

dozers of the Israeli armed forces systematically flattened the chicken coops,

killing all 31,000 chickens inside, and destroyed the plant and material neces-

sary for the business.” The Mission concluded that “this was a deliberate act of

wanton destruction not justified by any military necessity.”91 Furthermore, it

pointed out that “unlawful and wanton destruction which is not justified by milit-

ary necessity amounts to a war crime.”92

The principle of military necessity is closely connected to the principle of pro-

portionality, which will be discussed in the section that follows.

E. Proportionality

General considerations

89 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc. A/

HRC/12/48, para. 1929.

90 Ibid., para. 50.

91 Ibid., para. 51.

92 Ibid., para. 50.

50

The principle of proportionality has, in abstract terms, very broad fields of ap-

plication: in the law of force (jus ad bellum and jus in bello), human rights law, envir-

onmental law, economic law, etc. Its functioning and breadth of application differ with

the normative context. It might – at least within the specific framework in which it is

embedded – be thought to have the character of a general principle of law. Within the

law of armed conflict it is, following the principle of military necessity, an additional

element of constraint. It is supposed to further constrain any military action that may

be considered tactically “necessary”.

In the scheme of evaluation proposed in the present analysis, the principle of

proportionality is to be referred to only when an action has been considered neces-

sary from a military perspective. As it was well explained by Thomas M. Franck, pro-

portionality within the laws of armed conflict constrains the means of warfare, to en-

sure that the parties to an armed conflict do no more than is required by the necessit -

ies of war as interpreted in the light of basic human values93. The only legitimate aim

in war is, as laid down in the St Petersburg Declaration, to weaken the military forces

of the enemy and to compel his surrender with the least possible number of war vic-

tims and material damage. The principle of proportionality was developed specifically

to limit the discretion of the parties to a conflict. For instance, it forces commanders,

when they are considering their tactical choices, to weigh civilian values against milit-

ary gains.

The problem with the principle of proportionality is not, as a committee estab-

lished by the Prosecutor of the International Criminal Tribunal on the former

93 See T.M. Franck, “On Proportionality of Countermeasures in International Law”, American Journal of Inter-

national Law, Vol. 102 ( 2008), pp. 715 et seq.

51

Yugoslavia put it, whether it exists but what it means “in concreto” and how it is to be

applied94; it is, as the committee went on to say, much easier to formulate it in gen-

eral terms than to apply it to a particular set of circumstances. But in order to “pull

[actors] towards compliance”95 it must be given an operable content. I suggest that

we develop, for the purpose of structuring the principle of proportionality, tools similar

to those we use to deal with fundamental rights in constitutional law and human

rights in international law. One might suggest a three-level-test: 1) The military action

in question must be adequate for achieving the goal that represents a military neces-

sity; it must be a reasonable means for achieving that goal; 2) The resulting loss of

life and damage to property must not be excessive, i.e. out of proportion to the ex -

pected military advantage96; this signifies that means and methods of combat may be

said to be proportional only if they are the least damaging way to achieve a certain

end; when a less damaging choice is available any more destructive means would

be disproportionate97; 3) a balance must be struck between the values underlying mil-

itary necessity and considerations of humanity; whereas “reasonableness”, as sug-

gested above, represents within this sequence of proportionality tests a basic

94 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Cam-

paign Against the Federal Republic of Yugoslavia, paras 71-79, (June 2000), reprinted in International Legal

Materials, Vol. 39 (2000), p. 1257.

95 See T.M. Franck op. cit., supra note Error: Reference source not found, p. 718.

96 J.E. Parkerson, “United States Compliance with Humanitarian Law Respecting Civilians during Operation

Just Cause”, Military Law Review, Vol. 133 (1991), p. 47.

97 As to the choice of weapons, Christopher Greenwood has summarized this view that “the crucial question is

whether other weapons or methods of warfare available at the time would have achieved the same military

goal or effectively while causing less suffering or injury.” Ch. Greenwood, “Command and the Laws of

Armed Conflict “, Strategic Combat Studies Institute Occasional Paper No. 4, Vol. 24 (1993), quoted in T.M.

Franck op. cit., supra note Error: Reference source not found, p. 728.

52

threshold and prohibition of excessiveness adds a quantitative element, this third test

asks for a general weighing of the values and interests involved.

Many delicate questions arise while analysing whether the requirements of the

proportionality principles have been met: What is, we may ask, the legitimate aim

against which the means are to be measured? Can it be winning a war? Or is it win-

ning a battle? Or is the frame of reference much narrower – a concrete military target

in an ongoing battle? I am inclined to distinguish between strategic and tactical levels

in decision-making. In its overall evaluation, the report of the Prosecutor’s committee

of the Yugoslavia Tribunal, which has just been mentioned, endorsed the interpreta-

tion that “overall military advantage, is considered in proportionality analysis, not just

that resulting immediately and directly from an attack.”98 Sifting through the evidence

pertaining to NATO’s high-altitude bombing of the former Yugoslavia during the

Kosovo War, the committee concluded that it did not warrant bringing a criminal pro-

secution against those who had ordered the action because, although the civilian

casualties “were unfortunately high”, the tactics employed did not “appear to be

clearly disproportional”. In a more limited action, such as attacking a specific target in

the battlefield or from the air, proportionality is, naturally, given a narrower, operative

meaning. Many questions remain open. In any case, the rule against inflicting super-

fluous injury and casualties sheds no light on whether it is a direct military advantage

to bring a costly war to a speedier end99. Even if violence is directed at a particular

target in pursuit of a particular purpose, it must be proportional to the military gain

that is foreseen. As far as combat decisions are concerned a narrower focus seems

to be indicated.

98 Supra, Chapter III.99 Cf. T.M. Franck, op. cit., supra note Error: Reference source not found, pp. 766 et seq.

53

It is prohibited, according to the International Court of Justice’s Advisory Opin-

ion on the Legality of the Threat or Use of Nuclear Weapons of 1996, “to use

weapons causing a harm greater than that unavoidable to achieve military object-

ives.”100 The Court added that those fundamental rules are to be observed by all

States whether or not they have ratified the conventions that contain them, because

they constitute intransgressible principles of international customary law101. Besides

other provisions, three articles of Additional Protocol I are the pertinent setting for the

application of the principle of proportionality. They give an idea of how the principle of

proportionality works in international humanitarian law: First, Article 51 prohibits at-

tacks on civilians and civilian property and attacks on military objectives that cause

loss of life and property that is excessive in relation to the direct military advantage

anticipated; the Protocol thereby recognizes that any attack, however carefully ex-

ecuted, may result in collateral damage.102 Similarly, Article 57 obligates those re-

sponsible for operational decisions to refrain from launching attacks “which may be

expected to cause incidental loss of civilian life, injury to civilians, damage to civilian

objects, or a combination thereof, which would be excessive in relation to the con-

crete and direct military advantage anticipated”, this suggests that an overall military

advantage is not something that is obtained immediately as the result of an attack. 100 See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Er-

ror: Reference source not found, para. 78.

101 See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Er-

ror: Reference source not found, para. 79.

102 See also Article 2 (b)(iv) of the Statute of the International Criminal Court, according to which “(i)ntention-

ally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civil-

ians or danger to damage to civilian objects or widespread, longterm or severe damage to the natural environ-

ment which would be clearly excessive in relation to the concrete and direct overall military advantage anti-

cipated.”

54

Second, indiscriminate attacks are prohibited in international law. Third, according to

Article 58 of Additional Protocol I, belligerents are obliged to take precautionary

measures to protect the civilian population, individual civilians and civilian objects un-

der their control against dangers arising from military operations.

Determining the legitimacy of targets can be a delicate calculation. Much de-

pends on the nature of the target. Troops, tanks, fighter planes, arms depots, military

buildings, installations, and so on, may generally be regarded as legitimate targets.

Hospitals, churches and other religious buildings, schools and kindergartens, private

homes, and so on, may not, as a general rule, be attacked. Bridges, convoys, radio

and television stations and many other objects may have a double, or mixed, use,

military and civil; in these cases a decision has to be taken on whether the military

importance of each object justifies the infliction of civilian casualties. Yoram Dinstein

has enumerated and discussed them in detail out the criteria in detail103.

Two examples may be illustrative:

The Bagdad example. Bombing a bridge in Bagdad during the Iran-Iraq war in

1990 was legal, because cables attached to the bridge were used to commu-

nicate military orders. The bombing, by NATO, of the bridge connecting the

two parts of Novi Sad in Serbia seems to have been illegal because this

bridge did not serve any military purpose but carried installations of civil infra-

structure (water, electricity, communications).

The example of the bombing of a broadcasting station in Belgrade. On 23 April

1999, NATO deliberately bombed a broadcasting station in Belgrade. Radio

and television stations could be considered to be legitimate military objectives

provided that they were of fundamental military importance. Attack against a

103 Y. Dinstein, op. cit., supra note Error: Reference source not found, pp. 82 et seq.

55

military objective is, of course, permitted if it is capable of making an effective

contribution to military action and if its destruction offers a definite military ad-

vantage. However, certain other conditions must also be met: any incidental

loss of civilian life and damage to civilian objects caused by such an attack

should not be excessive in relation to the concrete and direct military advant-

age anticipated. The military advantage gained by the destruction of the

broadcasting station in Belgrade was open to question. There were several

other stations that transmitted military information, and the station in question

was provisionally repaired within three hours. The attack killed 16 civilians and

injured 16 others. But the collateral damage could have been even more seri-

ous, as an estimated 120 civilians worked in the building. Opinion is divided on

whether the principle of proportionality was violated. Amnesty International, for

example, was of the view that the attack violated the principle104. One expert

on international humanitarian law even found it “crystal clear that the destruc-

tion of this object did not conform to [the] requirements of international human-

itarian law: proportionality between military advantage and civilian casualties

and prior and unambiguous warning.”105 On the other hand, the committee ap-

pointed by the Prosecutor of the Yugoslavia Tribunal, referred to in the forego-

ing pages, concluded that the “civilian casualties were unfortunately high but

do not appear to be clearly disproportionate.”106

A warning must be given to the reader: The theory stated and defended in this

chapter does not reflect the traditional doctrine. According to classic teaching as it is

rooted in the conceptions of international law of the 19th century and embedded in

modern commentaries107, the principle of proportionality is limited to the scope

104 Amnesty International, Collateral Damage’ or Unlawful Killings? Violations of the Laws of War by NATO

during Operation Allied Force, London, Amnesty International, June 2000.

105 E. David, „Respect for the principle of distinction in the Kosovo war“, Yearbook of International Humanit-

arian Law, Vol. 3 (2000), p. 106.

106 ICTY, supra note Error: Reference source not found.

56

provided for it in Article 51 of the First Additional Protocol. If the principle is to be con-

strued like this, a defendless soldier (e.g. sleeping under a tree) might lawfully be

killed. However, according to our view which is anchored in modern human rights as

well as constitutional law, such a conception of mutually exclusive categories cannot

be right. Seen in the light of broad, overarching “constitutional” thinking the principle

of proportionality has to be given, in international humanitarian law as in the legal or-

der as a whole, an all-embracing meaning; room is thus created for differentiation

between even within the (otherwise separated) category of combatants.

Environmental protection as a case in point

The principle of proportionality is often identified with the prohibition of non-

collateral damage. To accede to this would be to take a view that is narrow, too posit -

ivistic and theoretically unpersuasive. Principled construction of the law requires pro-

portionality to be conceived of in a much broader way: as occupying the same plane

as a legal order and illuminating and guiding the legal process. One might cite the

principle of environmental protection in international humanitarian law as an illustrat-

ive example of a set of rules that broadly incorporate the principle of proportionality.

War, whether international or domestic, means destruction. This includes de-

struction of parts of the natural environment such as animals, plants, landscapes, or

water systems. The use of certain weapons, particularly weapons of mass destruc-

tion, may have a long-lasting adverse impact on the environment. This may be an as-

pect of military strategy, parties to the conflict targeting sections of the environment in

order to weaken their enemy’s capacities. But it may also be a consequence of con-

flict. The destruction of power stations, chemical plants and other industries, or of

57

drains and sewers, may result in the contamination of water sources, arable land and

the air, which may affect the health of entire populations. Civilians may be exposed to

thirst, and potentially life-threatening diseases, such as cholera, typhus or hepatitis.

In general, the environment is a civilian object and vulnerable to all the effects of war

to which civilian objects may be exposed: deliberate targeting, the destructive effects

of war, indiscriminate attacks and disproportionate damage. The consequences of

these acts for the environment, and thus for the health and survival of human beings,

can be considerable. But the protection to be accorded to the environment during

armed conflict stems not only from the application to the environment of the rules

protecting civilian objects, but also from a recognition of the need to provide particu-

lar protection to the environment as such.

The law of armed conflict protects the natural environment from the worst ef-

fects of war. The basic rule is stipulated in Article 35 of Additional Protocol I: “It is pro-

hibited to employ methods or means of warfare which are intended, or may be ex-

pected, to cause widespread, long-term and severe damage to the natural environ-

ment.”108 Other pertinent provisions are found in the Convention on the Prohibition of

Military or Other Hostile Uses of Environmental Modification Techniques109 (ENMOD)

and in Article 55 of Additional Protocol I. Paragraph 1 of the latter reads: “Care shall

be taken in warfare to protect the natural environment against widespread, long-term

108 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims

of International Armed Conflicts (Protocol I), 8 June 1977, Art. 35, para. 3.

109 Convention on the Prohibition of Military or Other Hostile Uses of Environmental Modification Techniques,

adopted on 10 December 1976 by the UN General Assembly. UN Doc. A/RES/31/72. As defined in Art. 2,

“the term ‘environmental modification techniques’ refers to any technique for changing - through the deliber-

ate manipulation of natural processes - the dynamics, composition or structure of the Earth, including its bi -

ota, lithosphere, hydrosphere and atmosphere, or of outer space.

58

and severe damage. This protection includes a prohibition of the use of methods or

means of warfare which are intended or may be expected to cause such damage to

the natural environment and thereby to prejudice the health or survival of the popula-

tion.”110 The phrasing suggests that only very severe measures will contravene this

provision.

A case in point is the use of defoliants (better known under the code name

Agent Orange) by the US Army in the Vietnam War. The US Army’s objective was

twofold: first, to defoliate the dense jungle so that enemy forces could not hide in it;

and, second, to impede the production of food for sustenance. The severe impact of

these chemicals on the natural environment was very much intended. And the US

government soon knew of their grim consequences for the health of human beings,

ranging from cancer to serious birth defects. It is generally agreed that the (unpropor-

tional) use of Agent Orange during the Vietnam War would have contravened these

(at the time non-existent) norms.

Let me give another example that is less obvious. During the Gulf War in 1991

the retracting Iraqi armed forces set on fire a great number of oil wells. If Iraq had

been party to Additional Protocol I or to the ENMOD Convention, would these acts

have been in violation of international law? At the time, the intentional destruction of

oil wells seemed to be in violation of international humanitarian law. Afterwards, it be-

came a matter of dispute whether the three cumulative conditions of “widespread,

long-term and severe damage” to the natural environment enumerated in Article 55

110 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims

of International Armed Conflicts (Protocol I), 8 June 1977, Art. 55, para. 1.

59

of Additional Protocol I had been fulfilled. The “long-term” criterion – some argued –

had not been satisfied111.

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear

Weapons, the International Court of Justice addressed the existing norms related to

safeguarding and protecting the environment. The Court “recognize[d] that the envir-

onment is not an abstraction but represents the living space, the quality of life and

the very health of human beings, including generations unborn” and found that

“States must take environmental considerations into account when assessing what is

necessary and proportionate in the pursuit of legitimate military objectives. Respect

for the environment is one of the elements that go to assessing whether an action is

in conformity with the principles of necessity and proportionality.” Referring to Articles

35 and 55 of Additional Protocol I, the Court held that “these provisions embody a

general obligation to protect the natural environment against widespread, long-term

and severe environmental damage; the prohibition of methods and means of warfare

which are intended, or may be expected, to cause such damage; and the prohibition

of attacks against the natural environment by way of reprisals.” The Court also cited

a resolution by the United Nations General Assembly, on the “Protection of the Envir-

onment in Times of Armed Conflict,” which states that “destruction of the environment

not justified by military necessity and carried out wantonly, is clearly contrary to exist-

ing international law.”112

To sum up, customary international law to environmental protection has not

yet developed and the threshold for finding a violation of treaty law is high. Con-111 Cf. Y. Dinstein, op. cit., supra note Error: Reference source not found.

112 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found, pp. 241 et seq.

60

sequently, the protection afforded to the natural environment remains low and its pre-

cise extent is controversial as the provisions in Additional Protocol I are not congru-

ent with those in the ENMOD Convention. Even so, “Intentionally launching an attack

in the knowledge that such attack will cause (…) widespread, long-term and severe

damage to the natural environment which would be clearly excessive in relation to

the concrete and direct overall military advantage anticipated”113 may be treated as a

war crime by the ICC.

F. Distinction

General remarks

The principle of distinction is at the heart of the law of armed conflict. It has,

like the other principles, a long tradition in international legal thought114. It imposes on

commanders and soldiers the duty to distinguish military objectives from civilian ob-

jects. The main purpose of the principle of distinction is to protect non-combatants.

To make this possible, parties to an armed conflict must make a distinction between

113 Article 8,2,b,iv of the Rome Statute of the International Criminal Court, adopted on 17 July 1998. Entered

into force on 1 July 2002. UN Doc. A/CONF.183/9.

114 Cf. H. Grotius, De iure belli ac pacis, Paris, 1625 (translated by E. Campbell, London 1814), third book,

chapter 11, para. IX, „(…)Thus age and sex are equally spared, except where the latter have departed from

this privilege by taking arms, or performing the part of men.”; E. de Vattel, op. cit., supra note Error: Refer-

ence source not found, para. 147: „(…) Pourvu que les habitants se soumettent à celui qui est maître du pays,

qu’ils payent les contributions imposées, et qu’ils s’abstiennent de toute hostilité, ils vivent en sûreté comme

s’ils étaient amis.“; Ch. Wolff, op. cit., supra note Error: Reference source not found, IV. Teil, 8. Hauptstück,

para. 1192:“(…) Danach ist es nicht erlaubt die Untertanen dessen, der unrechtmässiger Weise krieget, so

lange sie sich aller Gewalt enthalten, und keinen Vorsatz Gewalt auszuüben zu Tage legen, zu tödten, oder

auf eine andere Art wider ihren Leib zu wüten, gleichwie es auch nicht erlaubt ist die Kriegsgefangenen, oder

die sich ohne Bedingung ergeben haben ums Leben zu bringen (…).“

61

combatants and non-combatants as well as between military targets and civilian ob-

jects. Traditionally, the principle requires combatants to distinguish themselves from

civilians. This is considered to be an indispensable means for protecting non-com-

batants. In the absence of distinguishing marks, belligerents are unlikely to be able to

tell their adversaries from civilians, with predictable results. However, Article 44 of

Additional Protocol I provides a qualification of this absolute rule115.

The purpose of the principle of distinction is to set limits on the conduct of war-

fare and to protect non-combatants from being wounded or killed. We refer again to

Rousseau’s observation in Du Contrat Social that when States go to war against

each other, private individuals are, for the purposes of war and because of their role

as soldiers, turned into instruments of States:

“War then is a relation, not between man and man, but between States and States, and

individuals are enemies only accidentally, not as men, nor even as citizens, but as sol-

diers; not as members of their country, but as its defenders. Finally, each State can

have for enemies only other States, and not men; for between things different in nature

there can be no real relation.”116

The essence of the principle of distinction is to be found in the rule that: States

must never use weapons that are incapable of distinguishing between civilian and

military objectives. Additional Protocol I specifically outlaws indiscriminate attacks 115 According to Art. 44 para. 3 of the Protocol I additional to the Geneva Conventions of 1949 “combatants are

obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a mil-

itary operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts

where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain

his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each milit-

ary engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military

deployment preceding the launching of an attack in which he is to participate.”

116 J.-J. Rousseau, op. cit., supra note Error: Reference source not found, Book 1, Chapter IV.

62

which are defined as those not directed at a specific military objective or which em-

ploy weapons that cannot so be directed.117 Commanders are required to ensure that

violations of international humanitarian law do not take place under their command,

and that disciplinary or punitive action follows when they do occur. The use of ad-

vanced technology might make it easier for those in positions of responsibility to fulfil

their obligations under the principle of distinction.

When NATO forces attacked the Federal Republic of Yugoslavia in the spring

of 1999, to enforce a solution to the dispute over Kosovo, questions arose regarding

their compliance with international humanitarian law. The first two months of NATO’s

aerial bombardment caused 500 civilian deaths and wounded 820 others. NATO had

decided to adopt a zero-casualty strategy118, which meant that the bombing was un-

dertaken from heights at which NATO aircraft could not be hit by the enemy. The cost

of securing the safety of NATO pilots was imprecise bombing. It became a subject for

controversy whether this method of aerial bombardment, the use of particular

weapons and the relatively high proportion of collateral damage to civilians respected

the principle of distinction. The NATO’s use of cluster bombs, for example, clearly vi-

olated the principle of distinction119.

The International Court of Justice found that the question was not one of pro-

portionality but of whether the weapons that were used reached the threshold test of

117 Article 51, Section 4.118 A.P.V. Rogers, „Zero-casualty warfare“, International Review of the Red Cross, Vol. 82, No. 837 (2000),

pp. 165 et seq.

119 E. David, „Respect for the principle of distinction in the Kosovo war“, Yearbook of International Humanit-

arian Law, Vol. 3 (2000), pp. 81 et seq.

63

discrimination. If (nuclear) weapons are incapable of distinguishing between civilian

and military targets their use is illegitimate per se120.

Direct participation of civilians in hostilities

The forms of war are changing. Today, clearly delineated battlefields, set apart

from civil life, are the exception rather than the rule. A space in which combatants

fight one another, and which is free of non-combatants, is seldom to be found. This

has given rise to a fresh set of problems. One of them concerns the direct participa-

tion of civilians in warfare. In the last few decades, military operations have been

shifting, from recognizable battlefields to civilian population centres: this has been a

continual process. So, too, the increasing involvement of civilians in activities that are

more closely related to the actual conduct of hostilities. The question is who qualifies

as a civilian under international humanitarian law. It seems important to distinguish

organized armed forces - groups and units who conduct hostilities on behalf of a

party to an international or non-international armed conflict (“armed forces” in a func-

tional sense) - from civilians, who do not directly participate in hostilities or who do so

only spontaneously, sporadically, or in an unorganized manner. The International

Committee of the Red Cross (ICRC) has undertaken a study on the subject. As far as

the direct participation of civilians in hostilities is concerned the study notes that:

“… civilian direct [sic] participation in hostilities is neither prohibited nor privileged by

IHL [international humanitarian law]. In the absence of such prohibition, civilian direct

participation [sic] in hostilities does not, in and of itself, constitute a war crime. How-

ever, in the absence of combatant privilege, civilians having directly participated in hos-

120 J. Gardam, Necessity, Proportionality and the Use of Force by States, Cambridge, Cambridge University

Press, 2004, p. 96.

64

tilities remain subject to prosecution for any act penalized under domestic law, which

they may have committed during their participation.”121

To be exact, treaty law does not contain a clear definition of the notion of “dir -

ect participation in hostilities.” The ICRC avers that it “must therefore be interpreted in

good faith in accordance with the ordinary meaning to be given to its constituent

terms in their context and in light of the object and purpose of IHL.”122 An interpretive

guide on the subject issued by the ICRC says that three cumulative criteria must be

met for an act to qualify as direct participation in hostilities:

1. The act must be likely to adversely affect the military operations or military capa-

city of a party to an armed conflict or, alternatively, to inflict death, injury, or de-

struction on persons or objects protected against direct attack (threshold of harm)

2. There must be a direct causal link between the act and the harm likely to result

either from that act, or from a coordinated military operation of which that act con-

stitutes an integral part (direct causation)

3. The act must be specifically designed to directly cause the required threshold of

harm in support of a party to the conflict and to the detriment of another (belliger -

ent nexus).123

The consequences for civilians directly participating in hostilities are far

reaching: they lose their protection from direct attack, which is granted only to those

121 ICRC, “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Hu-

manitarian Law”, International Review of the Red Cross, Vol. 90, No. 872 (2008), pp. 991 et seq.

122 Ibid., p. 1012.

123 Ibid., p. 995.

65

taking no active part in the hostilities. The loss of protection, however, is not a con-

tinuous one, based on their status, but a temporary one, based on their participation

in specific hostile acts. When civilians cease to take a direct part in hostilities they are

once again protected from direct attack.

Summing up and some examples

It is important to note that, generally, under the rule of law, and in accordance

with the four cardinal principles discussed in the foregoing pages, the tactics to be

employed during a conflict are not to be left to the discretion of the combatants. The

principles present an obstacle to any conflict deteriorating into a spiral of hatred and

violence. Yet, their appropriateness is also subject to legal rules and to review. The

sounder the structures and procedures of the institutions that are responsible for in-

vestigating and assessing respect of the principles are, the greater are the credibility

and effectiveness of these reviews of lawfulness should be. War crimes tribunals –

after they have objectively established the facts and given all parties a fair hearing –

seem ideally suited to this task. They are in the best position to develop and apply

standards for assessing proportionality.

To determine whether the means employed in an attack were proportional it

is necessary to examine whether a reasonably well-informed person, in the same cir-

cumstances and making reasonable use of the information available to him, could

have expected the attack to cause excessive civilian casualties or damage124.

124 Protocol I, Article 57.

66

All the principles we have dealt with have an impressive historical lineage.

They were known to ancient civilizations and religions125. Probably the most important

developments in the history of not only the jus ad bellum, but also of the jus in bello,

were the work of international legal scholars in the Age of Humanism and during the

Enlightenment. The references we made to some of their ideas demonstrate that the

basic values of today’s humanitarian law have deep roots in cultural history.

Moreover, those ideas even shed a new light on the contemporary understanding

and (re)interpretation of law and its principles and serve as source of inspiration.

To sum up: during war, international humanitarian law generally does not ex-

clude the use of violence against adversary human beings as long as it is justified by

military necessity, is proportional to the military aim pursued, and differentiates, to the

greatest extent feasible in a particular context, between combatants and non-com-

batants. Combatants or fighters are allowed a significant degree of latitude, for this

body of the law recognizes and takes into account the fact that every situation is

likely to have its own distinct complexities. As long as the actions of combatants con-

form to the principles mentioned above, unintended non-combatant deaths and injur-

ies are characterized as “collateral damage” rather than as war crimes and incur

neither civil nor criminal liability.

That efforts are being made to make the principles operable is a considerable

achievement of modern legal doctrine and practice. It is especially important that

more and more “spaces of second opinion” – Thomas M. Franck’s phrase - are being

created. These “spaces” are public opinion, at home and abroad, courts and tribunals

or para-tribunals, fact-finding commissions, and other bodies that set standards and

125 For the significance of and interrelations with other systems of belief see Chapter IV on Religion and IHL.

67

examine them – all of them judging post factum, but setting standards to be followed

by those who take battlefield decisions, standards by which they might be judged, in-

dicted and sentenced. And all of them contribute to making the law more effective.

This is especially important as the principles just mentioned are elastic and vague

and need to be given more precise expression in order to become operatively useful

and to govern behaviour. Their credibility is directly proportional to the authoritative-

ness and fairness of their application. They will hopefully influence conduct during

hostilities in the future more than in the past. In addition, modern developments in

technology, by making it possible to distinguish more accurately between military and

civilian objectives, make it easier to meet in full the obligations imposed by the prin-

ciple of proportionality.

II. Constraints in the use of and ban on weapons

A. General remarks

Let me now make a distinction that seems essential: the purpose of the prin-

ciple of proportionality in jus in bello is not only to constrain the excessive use of

weapons whose deployment is not prohibited, but also to prohibit entirely the use of

particularly destructive weapons. In this regard, Michael Reisman says:

“At any moment, the ‘jus in bello’ is composed of two parts: what we may call ‘Part A’

consists of principles to be applied in determining the proper use and quantum of force

in specific cases. ‘Part B’ contains a set of absolute prohibitions. Part A is quite indul-

gent to the specialist in violence in international conflicts. In Part B, in contrast, the

drafters of international law impose absolute limits on the use of certain instruments

and methods of violence, limits that the warrior may not suspend on the ground that

those instruments or methods may be demonstrated to prove militarily necessary and

proportional to that necessity in a particular urgent situation. Resort to Part B’s prohib-

68

ited modes and instruments is impermissible, notwithstanding their potential military ad-

vantages and remains so even if the adversary resorts to them.” 126

I shall deal with the Part B category of prohibitions in a separate section. This

is not for systematic but for practical reasons. Reisman notes the existence of a rela-

tionship between the increasing failure to comply with Part B prohibitions and the ap-

palling increase in deaths and injuries among non-combatants.

Efforts to limit or ban particularly destructive or indiscriminate weapons are at

the heart of international humanitarian law. Such restrictiveness is inherent in the

principles of humanity, proportionality and distinction127. Some provisions have an es-

sential character. They make up the core of the rules of constraint. It is imperative to

“hold the centre.” This means the drawing of a clear line between those aspects of

the principles of proportionality that are accessible to balancing processes – on a

case-by-case basis – and those that are not, i.e. those means that are categorically

disproportionate or indiscriminate.

126 W.M. Reisman, op. cit, supra note Error: Reference source not found, pp. 852 et seq.

127 The „School of New Haven“ has argued that a ban on a specific category of weapons is superfluous:

Weapons which are militarily effective could not be illegal per se, in each case, there would have to be a bal-

ancing test between potential damages and military advantage (cf. M.D. McDougal and F.P. Feliciano, Law

and Minimum World Public Order, New Haven, Yale University Press, 1961, p. 77). This view overlooks the

fact that certain weapons have such a destructive potential, or are so cruel, that the risk of a balance test must

never be taken: It would not revive the countless victims to acknowledge ex post that indeed, a nuclear bomb

should not have been dropped in a specific conflict. Not unlike ius cogens norms, a ban on certain weapons

guarantees a minimum level of humanity, thus contributing to the very minimum world public order the New

Haven School advocates.

69

For instance, the nature of some weapons is such that they inflict greater injur-

ies – especially on civilians, but also on the opposing army – than is warranted by

their strategic effectiveness.

B. Banning weapons

A number of treaties outlaw certain weapons on the grounds that their use

cannot be justified by any rational cost-benefit analysis. In these cases, total bans

and categorical prohibitions are the only effective solutions. Balancing the attainment

of military and political ends with the costs, in terms of life, is inadequate in such

cases. At various points in history, the international community has concluded that

there was no situation that could justify the use of certain weapons.

In several cases, the international community has succeeded in prohibiting

certain kinds of weapon128. Each legal instrument represents a step on the way to-

wards a safer world, an issue that has been closely examined from the perspective of

the relatively new concept of human security129. The most prominent bans are these:

The Convention on the Prohibition of the Development, Production and Stock-

piling of Bacteriological (Biological) and Toxin Weapons and on their Destruction was

adopted in 1972 and entered into force in 1975. As its name suggests, the Biological

Weapons Convention bans the development, production, transfer, retention and ac-

quisition of biological weapons and requires that stockpiles be destroyed. It was, ar-

guably, the first comprehensive multilateral disarmament treaty prohibiting an entire

category of weapons. Ratification of the treaty, though widespread, is not universal.

128 Cf. W.H. Boothby, Weapons and the Law of Armed Conflict, New York, Oxford University Press, 2009.

129 For more details see the discussion of the concept at the end of this chapter.

70

However, more than 160 States have become party to the Convention, among them

almost all States of military significance. According to the ICRC’s Study on Custom-

ary International Humanitarian Law, all States are now prohibited from using biolo-

gical weapons on the basis of customary law130.

The Convention on the Prohibition of the Development, Production, Stockpiling

and Use of Chemical Weapons and on their Destruction is no less sweeping in inten-

tion131. It was adopted in 1993 and entered into force in 1997132, the result of many

years of effort towards this end. The Gas Protocol of 1925 was a major step. Al-

though the Protocol prohibited the use of chemical weapons it did not address their

production, stockpiling and destruction. In that sense, it did not “exclude completely

the possibility of the use of chemical weapons.”133 The use of chemical weapons by

Iraq, during the war against Iran and against the Kurdish population in northern Iraq,

gave international negotiations a new impetus. In the euphoric years after the end of

the Cold War, the Chemical Weapons Convention was understood to be an important

step in “progress[ing] towards general and complete disarmament under strict and ef-

fective international control, including the prohibition and elimination of all types of

weapons of mass destruction.”134 Regrettably, certain significant States - such as Is-

rael, North Korea, and Syria - have not yet acceded to the Convention, but more than 130 L. Doswald-Beck and J.-M. Henckaerts, op. cit., supra note Error: Reference source not found, Vol. 1, pp.

256 et seq.

131 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons

and on Their Destruction of 13 January 1993 [CWC], adopted by the General Assembly at its forty-seventh

session, on 30 November 1992. UN Doc. A/RES/47/39

132 M. Bothe, N. Ronzitti and A. Rosas (eds), The New Chemical Weapons Convention: Implementation and

Prospects, The Hague, Kluwer Law International, 1998.

133 Preamble of the CWC of 1993, supra note Error: Reference source not found.

134 Preamble of the CWC of 1993, supra note Error: Reference source not found.

71

180 others have ratified it. As is the case with biological weapons, the use of chem-

ical weapons is now prohibited on the basis of customary international law135.

In 1997, another total ban on a particular category of weapons was adopted,

namely the Convention on the Prohibition of the Use, Stockpiling, Production and

Transfer of Anti-Personnel Mines and on Their Destruction. This Convention entered

into force in 1999. Anti-personnel mines had been used for many decades and their

military usefulness was undisputed. Efforts to put an end to these weapons arose be-

cause the consequences of their use violated one of the basic principles of interna-

tional humanitarian law, the principle of distinction. The preamble to the Convention

begins by declaring that the States Parties are determined “to put an end to the suf-

fering and casualties caused by anti-personnel mines, that kill or maim hundreds of

people every week, mostly innocent and defenceless civilians and especially children

(…) and have other severe consequences for years after emplacement.” The Con-

vention achieved a total ban on the possession and use of this ‘indiscriminate’

weapon. Although it quickly found widespread support, some of the most powerful

States are yet to ratify it.

Before examining certain cases of particular interest, and recent successes, in

more detail, it might be useful to briefly mention the Convention on Prohibitions or

Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to

Be Excessively Injurious or to Have Indiscriminate Effects (CCW), which was adop-

ted in 1981. This framework convention does not itself ban particular weapons, but

allows for the successive banning of certain conventional weapons by means of addi-

135 L. Doswald-Beck and J.-M. Henckaerts, op. cit., supra note Error: Reference source not found, Vol. 1, pp.

259 et seq.

72

tional protocols, each of which has to be ratified separately (the notion of conven-

tional weapons excludes weapons of mass destruction, i.e. biological, chemical and

nuclear weapons). As its title suggests, the purpose of the CCW is the progressive

banning of weapons that are “excessively injurious or have indiscriminate effects.”

Since the adoption of the Convention, several Protocols have been drawn up: the two

most recent are Protocols IV (1995) and V (2003). The former bans blinding laser

weapons; the latter regulates the clearance of explosive remnants of war136.

Most recent example: The ban on cluster bombs

The idea of arms control might, for some of you, evoke images of a dreary

process, dragging on interminably without producing any tangible results. Well, that

image may often be accurate. But sometimes, quite unexpectedly, there are rapid

changes in international law. I would now like to allude to the realization of a compre-

hensive ban on cluster bombs.

How was such an ambitious goal achieved so swiftly? As in every instance

when international humanitarian law has made significant progress, it was, more than

anything else, the shared outrage of mankind that galvanized the international com-

munity into action. In 2006, Israel and the Hezbollah fought a brief but ferocious war

in southern Lebanon that saw extensive use of cluster bombs. This widespread use

of cluster bombs by the Israeli armed forces gave rise to widespread criticism. A net-

work of non-governmental organizations or NGOs - the Cluster Munition Coalition,

comprising over 200 NGOs, - started a worldwide campaign. As a result of close co-

operation between like-minded States, civil society, the ICRC and the UN that fol-

136 Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention) of 13 October 1995 and Protocol

on Explosive Remnants of War (Protocol V to the 1980 Convention) of 28 November 2003.

73

lowed, less than two years later, the Convention on Cluster Munitions (CCM) was

drafted. And contrary to the expectations of most experts, the Convention did not

simply limit the use of cluster bombs, or place some restrictions on the kind of cluster

bombs that would be permitted: it comprehensively banned them137.

What are cluster bombs? They are area weapons that were first used on a

large scale by U.S. forces in the Vietnam War.138 In a cluster bomb, hundreds of

“bomblets” are lodged within a hollow dispenser. When the bomb is dropped, the dis-

penser splits open and releases the bomblets. Depending on the fuse that is used,

the bomblet will explode before, during or after impact. In addition, the casing of the

bomblets is designed to fragment into small particles. Thus, the cluster bomb can

cover, within a controlled fragmentation pattern, a wide area. While the shower of

fragments might have some effect on light military targets, usually cluster bombs are

effective only against human beings. Because of the velocity at which the fragments

are discharged, everyone in the area is likely to be killed or severely wounded. In ad-

dition, significant numbers of bomblets do not explode after deployment but remain

‘live’ - in some instances, for a long time - and can detonate on contact. In this way,

they cause numerous civilian casualties, even after war has ended. The Convention

on Cluster Munitions considers such weapons to be indiscriminate by nature and

therefore incompatible with the principles of international humanitarian law.

137 D. Thürer, “Die Humanisierung des Völkerrechts schreitet voran”, Neue Zürcher Zeitung, 6 January 2009, p.

5.

138 M. Krepon, “Weapons Potentially Inhumane: The Case of Cluster Bombs”, in R.A. Falk (ed.), The Vietnam

War and International Law: The Concluding Phase, Princeton, Princeton University Press, 1976, pp. 266 et

seq.

74

Within a remarkably short period of time, the Convention on Cluster Munitions

(CCM) was drafted. A far-reaching result was achieved: the Convention prohibits all

use, development, production or other acquisition as well as all transfer of cluster

munitions, requires the destruction of stockpiles and provides for a monitoring mech-

anism. On 30 May 2008, 111 States adopted the Convention at a conference in Dub-

lin. It will become binding international law when it enters into force on 1 August

2010, six months after the thirtieth instrument of ratification has been deposited.139

The CCM provides the most recent example of humanity’s efforts to restrict the

means of warfare; to counter, one might say, mankind’s ingenuity in finding ever

more powerful means to do itself harm.

C. Limiting the Use of small arms as a case in point

All the treaties mentioned in the previous section of this chapter aim to outlaw

certain weapons on the grounds that their use cannot be justified by any rational

cost-benefit analysis. Most weapons, however, are not proscribed. The law permits

their use, but only when they do not cause wanton injury, to combatants and non-

combatants, and are not of an indiscriminate nature.

At the national level, many States have significantly limited their arsenals to re-

duce the risk of armed violence. Police and national armed forces have a monopoly

on the possession and use, under law, of arms. It was not always thus. Internation-

139 A regular update on the state of signatures and ratifications is available at the website of the Cluster Muni-

tions Coalition: <www.stopclustermunitions.org/treatystatus>, accessed August 2010. Some major States

such as China, Russia and the United States have not yet signed the Convention. Israel is also not party to the

Convention.

75

ally, many States seek arms control and disarmament in order to reduce the risk of

the use of weapons and of armed conflict, not always with success.

Small-calibre weapons140 are an important case in point. They kill more people

than does any other type of weapon. At present, roughly 700 million small arms are

in circulation throughout the world, 100 million of them in Africa. They are, quite prop-

erly, called Africa’s weapons of mass destruction.141 Historically, the weapons that

have caused the most casualties and deaths in all conflicts are small arms. Today,

when most conflicts are internal, this is increasingly the case. It is estimated that

about 90% of the casualties in recent armed conflicts were caused by small arms;

and about 55% of the casualties among UN peacekeeping forces may be attributed

to small arms. A recent study estimates that, at present, 1000 companies in almost

100 States produce small arms and ammunitions, representing a remarkable in-

crease in companies producing small arms during the last decade. The last ten years

have seen an overall reduction of arms transfers, but this development in the arms

trade has been verified only with respect to major weapons systems. There are clear

indications that with regard to small arms, the trend has been in the other direction

over the same period.

Small arms all too often fall into the hands of untrained and undisciplined

forces, who are unaware of or unwilling to respect humanitarian law. The result, fre-

quently, is large-scale casualties, especially amongst civilians. There is a relationship

140 M. Bourne, Arming Conflict – The Proliferation of Small Arms, New York, Palgrave Macmillan, 2007.

141 For information on all aspects of small arms see the publications of the research project Small Arms Survey.

Since 2001, an annual review is published under the same name: Small Arms Survey, Oxford, Oxford Univer-

sity Press. See also the ICRC study: ICRC, Arms Availability and the Situation of Civilians in Armed Con-

flict, Geneva, June 1999.

76

between the availability of weapons and violations of humanitarian law resulting from

their use.

There is an urgent need to create norms, standards and procedures to reduce

or eliminate the availability of such weapons. In 2001, the UN General Assembly ad-

opted the UN Protocol Against the Illicit Manufacturing of and Trafficking in Fire-

arms142. It entered into force in 2005. However, only 164 States have ratified it. The

US, Russia and France have not signed the Protocol; China and the UK have signed

but not ratified it. Soon after the adoption of the Firearms Protocol, the principal UN

policy framework in relation to small arms and light weapons was established by the

UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small

Arms and Light Weapons in All Its Aspects. This has paved the way for negotiating

further agreements, at both the regional and the global levels.

An interesting approach for the future might be to oblige States to bear a cer-

tain responsibility for the use of arms exported by them. Under international humanit-

arian law, States are bound not only to respect the law but also to ensure that others

respect it. Logically, this means that they should bear some responsibility for the un-

lawful use of weapons exported by them, especially when the consequences can be

foreseen.

Improvements could be made along the following lines143: First, States could

limit the transfer of weapons, either directly or through licence, to States that are

party to treaties of international humanitarian law. That is to say, exports will be al -142 United Nations, General Assembly Resolution 55/255, Document-Nr. A/Res/55/255.

143 L. Doswald-Beck and P. Herby, Humanitarian Law Perspectives, in Julie Dahlitz (ed.), Future Legal Re-

straints on Arrns Proliferation, Vol. III, United Nations, 1996.

77

lowed only to those States that have ratified international humanitarian law conven-

tions and trained their armed forces in international humanitarian law. Importing

States must also have demonstrated that they take measures to suppress and pun-

ish violations of international humanitarian law. Also, restrictions could be placed on

those States on whose territories war crimes have taken place recently, and who

have made no effort to punish culpable parties. Second, prohibitions could be im-

posed on the transfer of weapons to States in which the structures of authority are

precarious, and which are therefore unlikely to be able to enforce international hu-

manitarian law. Third, limitations could be placed on the transfer of weapons to

States that have no effective control over the domestic distribution of weapons, who

imperil not only their own citizens but often also those of neighbouring States. Addi-

tionally, the international community could help States that have just emerged from

an armed conflict to maintain or acquire direct control of arms or armaments on their

territories in order to prevent the cross-border flow of weapons.

Small arms pose a particular challenge to the international community. Numer-

ous manufacturers are involved, and every regular army needs a considerable stock.

Let me move on to a second example that might also be typical of the problems that

confront efforts to control the international flow of arms.

Prohibition of nuclear weapons: Relative or absolute?

On 6 August 1945, the first atomic bomb was dropped on Hiroshima. It was

followed three days later by a second bomb on Nagasaki. The two bombs produced

approximately 150,000 immediate victims. More than 100,000 human beings died in

the following weeks and months as a result of injuries and nuclear radiation. The vic-

78

tims were mainly civilians. The consequences of dropping the bombs, for human

health, were long-lasting: they are being felt even now.

The following descriptions by victims are taken from Hiroshima Notes by Ken-

zaburô Oé, the Japanese writer:

“The war was almost over. Everyone hated it. But they were all submissive, and

heeded every beck and call of the army and the government (…).

It was just like hell – a procession of ghosts, a sea of flames. But I didn’t see the devil,

so I thought it was something happening on this earth (…).

An atomic bomb doesn’t just fall; someone has to drop it (…).

It was eight o’clock. There was a great flash; it was like nothing ever seen before. The

old woman neither felt a jolt nor heard a bang. The ceiling and the roof just fell down to-

gether, the floor jumped up, and she was caught between them.”144

Similar and equally moving words can be found in the testimony of witnesses

before the International Court of Justice (ICJ) in 1996. The central question before us

is whether the use or even the production, development and stockpiling of nuclear

weapons is legal. From the perspective of humanitarian law, the answer, it seems to

me, is obvious. But the question of the legality of the use of nuclear weapons is often

not neatly separated from the political interests linked to their possession. While

States that do not possess nuclear weapons reiterate the illegality of their use, nuc-

lear States resist any clear and explicit ban. Consequently, there is no international

convention prohibiting the use of nuclear bombs.

The atomic bombings were unlawful, as Bert Röling145 pointed out, because

they were attacks on the civilian population. They were not directed against military 144 K. Ôé, Hiroshima Notes, New York, Grove Press, 1996 (trans. by D. L. Swain, originally published in

1965).

79

targets. Neither in Hiroshima nor in Nagasaki was the civilian population given warn-

ing of the bombing. The dropping of the atomic bombs contradicted the rule adopted

at the St Petersburg Conference in 1868 that “the only legitimate object which States

should endeavour to accomplish during war is to weaken the military forces of the en-

emy.” From the very outset, the ICRC doubted the legality of this new weapon of

mass destruction146. Nuclear weapons cannot discriminate between combatants and

non-combatants, as pointed out by the ICRC in an appeal launched in 1950:

“Within the radius affected by the atomic bomb, protection is no longer feasible. The

use of this arm is less a development of the methods of warfare than the institution of

an entirely new conception of war, first exemplified by mass bombardments and later

by the employment of rocket bombs. However condemned - and rightly so - by suc-

cessive treaties, war still pre-supposed certain restrictive rule [sic]; above all did it [sic]

presuppose discrimination between combatants and non-combatants. With atomic

bombs and non-directed missiles, discrimination becomes impossible.”147

Obviously, nuclear weapons cannot discriminate between combatants and

non-combatants. The bombings of Hiroshima and Nagasaki resulted in no military

advantage whatsoever because the civilians affected by them were not taking part in

the war, whose end was not dependent on their destruction. The use of the two

bombs was thus pointless from a military point of view. And they had, arguably, no

decisive impact on Japan’s attitude. They were not the means by which the war was

brought to an end148. They killed indiscriminately and arguably to no purpose. And

145 Bert Röling, a Dutch judge, served on the International Military Tribunal for the Far East, the [Asian] coun -

terpart to Nuremberg).

146 ICRC (M. Huber), “La fin des hostilités et les tâches futures de la Croix-Rouge“, International Review of the

Red Cross, No. 321 (1945), pp. 657 et seq.

147 ICRC (L. Bossier and P. Ruegger), "Atomic Weapons and Non-Directed Missiles", International Review of

the Red Cross, Supplement, Vol. III, No. 4 (1950), pp. 70 et seq.

80

they tainted the cause of the Allied powers, and their entitlement to judging the de-

feated Japanese. It is worth quoting the thoughtful observations of Bert Röling:

“I sometimes had contact with Japanese students. The first thing they always asked

was: ‘Are you morally entitled to sit in judgement over the leaders of Japan when the

Allies have burned down all of its cities with sometimes, as in Tokyo, in one night,

100,000 deaths and which culminated in the destruction of Hiroshima and Nagasaki?

Those were war crimes.’ I am strongly convinced that these bombings were war

crimes. It was terrorizing the civilian population with the purpose of making war painful

beyond endurance so that the civilian population would urge the government to capitu-

late. It was terror warfare, ‘coercive warfare.’ And that is forbidden by the laws of war,

for sure. So why discuss it with the General [i.e. Douglas MacArthur]? That would have

been only embarrassing, I think (…) Of course, in Japan we were all aware of the

bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible

that we went for the purpose of vindicating the laws of war, and yet saw every day how

the Allies had violated them dreadfully.” 149

Courts have pronounced on the legality of nuclear arms, but with a somewhat

muddled outcome. In Shimoda et al v. The State, a Tokyo District Court observed in

1963 that:

“Any weapon the use of which is contrary to the customs of civilized countries and to

the principles of international law should ipso facto be deemed to be prohibited even if

there is no express provision in the law; the new weapon may be used as a legal

means of hostilities only if it is not contrary to the principles of international law. (…) In

these circumstances, it is proper to conclude that the aerial bombardment with an

atomic bomb of both Hiroshima and Nagasaki was an illegal act of hostilities under in-

ternational law as it existed at that time, as an indiscriminate bombardment of undefen-

ded cities. This is so since aerial bombardments with an atomic bomb, even if its target

148 The deaths of millions of Japanese could have been prevented without recourse to the atomic bombs. If the

Allies had only accepted the Japanese condition, namely the maintenance of the imperial system, the Japan -

ese would arguably have been willing to surrender. The destruction of Hiroshima and Nagasaki was as unne-

cessary as the bombing of Dresden a couple of months before the Germans surrendered.

149 B.V.A. Röling (ed.), The Tokyo Judgment: the International Military Tribunal for the Far East, Amsterdam,

University Press Amsterdem, 1977, pp. 84 and 87.

81

is confined to military objectives, brings about the same result as blind aerial bombard-

ment because of the tremendous destructive power of the bomb.”150

In the cases regarding nuclear tests (Australia/New Zealand v. France)151, the ICJ

was concerned with the atmospheric nuclear tests conducted by France in the South

Pacific. The Court had first to consider the essentially preliminary question as to

whether a dispute exists and to analyse the claim submitted to it. In the course of the

proceedings, France, by various public statements, announced its intention, following

the completion of the 1974 series of atmospheric tests, to cease the conduct of such

tests. Since the termination of those test was the original and ultimate objective of

Australia, the court found the objective of Australia being already accomplished.

Thus, as France had undertaken the international obligation to hold no further nuc-

lear tests in this area, the claim no longer had any object. Therefore, the Court was

not called upon to give a decision thereon.

In 1996, the ICJ rendered an advisory opinion on the legality of the use of nuclear

weapons. The opinion represented the first decision of the World Court that expressly

sets limitations to nuclear weapons in terms of international law. In its conclusions,

the Court ruled that "the threat or use of nuclear weapons would generally be con-

trary to the rules of international law applicable in armed conflict, and in particular the

principles and rules of humanitarian law". However, in the following sentence, the

Court held that in view of the present state of international law, taken as a whole, and 150 Shimoda (1963), Chisai Tokyo, 335 Hanji, pp. 17 et seq; transl. in Japanese Yearbook of International Law,

Vol. 8 (1964), p. 212; (Case no. 2,914 (wa) of 1955 and Case no. 4,177 (wa) of 1957); transl. in L. Friedman

(ed.), The Law of War - A Documentary History - Vol. II, New York, Greenwood Pub Group, 1972, pp. 1688

et seq.

151 ICJ, Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, p. 253 and

Nuclear Tests (New Zealand v. France), Judgement of 20 December 1974, ICJ Reports 1974, p. 457.

82

of the elements of fact at its disposal, it could not reach a definitive conclusion on the

legality of the use of nuclear weapons by a State in the extreme case that it was

compelled to do so because “its very survival would be at stake”152. One might won-

der what the “very survival of the State” actually means. Does the defence of the

“State” mean that the population of its adversary as well as its own and the popula-

tion of third countries might be threatened with extinction?

The request for an advisory opinion, which was made by the UN General As-

sembly, was very controversial at the time: it was feared that the ICJ would declare

the use of nuclear weapons legal. This, though much dreaded, did not happen. Nev-

ertheless, the advisory opinion was dangerously ambiguous in its findings. And the

finding that the use of nuclear weapons might not be illegal in very particular circum-

stances was the subject of vigorous dispute among the judges. It was adopted by

seven votes to seven, with the President of the Court casting the deciding vote.

However, an advisory opinion should not prevent us from forming our own

views. Unlike the International Court of Justice, we academics and institutions like the

Hague Academy where these thoughts were presented, are not influenced by the

major powers or the nuclear powers. Therefore, our findings may differ. The problem

might now be analysed and evaluated from a different perspective. From the view-

point of international humanitarian law, there is – so it seems to us – no such justific-

ation as a threat to the existence of a State. We agree with one of the judges in-

volved in that advisory opinion of 1996, Judge Mohammed Bedjaoui, who wrote in a

separate Declaration that:

152 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found, para. 97.

83

“By its very nature the nuclear weapon, a blind weapon, (…) has a destabilizing effect

on humanitarian law, the law of discrimination which regulates discernment in the use

of weapons. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is

the law of the lesser evil. The existence of nuclear weapons is therefore a major chal-

lenge to the very existence of humanitarian law …”153

If that is so, we have to ask ourselves: How can the “ultimate evil” be con-

sidered legal? How can a body of law condone a situation that challenges its very

“existence”? This view was supported by one of Judge Bedjaoui’s colleagues, Judge

Geza Herczegh, who noted in a Declaration that:

“The fundamental principles of international humanitarian law, rightly emphasized in the

reasons of the Advisory Opinion, categorically and unequivocally prohibit the use of

weapons of mass destruction, including nuclear weapons. International humanitarian

law does not recognize any exceptions to these principles.“154

Nuclear weapons, we would therefore argue, belong – in Reisman’s termino-

logy – in category B. They should certainly be moved into that category; and they

should, de lege ferenda, absolutely be prohibited. Nuclear weapons violate several

basic principles of international humanitarian law: they are indiscriminative by nature,

they cause unnecessary suffering and they render death inevitable.155 Philosophers

such as Karl Jaspers and Carl Friedrich Weizsäcker156 wrote about the challenges 153 Declaration of President Bedjaoui on the ICJ’s Advisory Opinion, Legality of the Threat or Use of Nuclear

Weapons of 8 July 1996, supra note Error: Reference source not found, para. 20.

154 Declaration of Judge Herczegh on the ICJ’s Advisory Opinion, Legality of the Threat or Use of Nuclear

Weapons of 8 July 1996, supra note Error: Reference source not found, p. 275.

155 E. David, A propos de certaines justifications théoriques à l’emploi de l’arme nucléaire, in C. Swinarski

(ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean

Pictet, Geneva/The Hague, ICRC/Martinus Nijhoff, 1984, pp. 325 et seq.

156 K. Jaspers, Die Atombombe und die Zukunft des Menschen, Munich, Deutscher Taschenbuch Verlag, 1961;

C.F. von Weizsäcker, Die Verantwortung der Wissenschaft im Atomzeitalter, Göttingen, Vandenhoeck and

84

and threats of the nuclear age. But despite such efforts, the nuclear arms race is still

running its course. The efforts of the international community to stop proliferation

have been largely ineffective. What conclusions should we draw from all these ef-

forts? Is Weizsäcker’s pessimistic view, that only weapons with no strategic signific-

ance will ever be banned, the right one? Experience would suggest that it might be:

whenever a weapon has been found to give a military advantage, efforts to have it

banned have mostly been unsuccessful. This was true of ‘Greek fire’ in antiquity and

of medieval crossbows. However, we have also seen that in the 20th century, some

weapons were banned despite the fact that their military usefulness was undisputed.

The main problem is that decisions on nuclear weapons are taken by theoreti-

cians and strategists. Their arguments revolve around abstract concepts, strategic

advantages and things of that sort. This is the greatest danger: making the fact of

suffering an abstract idea. The ICJ, too, seems to have succumbed to this: it seems

to be suggesting that the use of nuclear weapons, to ensure the survival of a State,

might be lawful. But how can a nuclear disaster secure the survival of a State? Does

a State have an existence independent of the people who inhabit it? Does it serve

any purpose if the State were to survive as an abstract concept, after all its inhabit -

ants have been wiped out in an all-out nuclear war? Let us say that two people are

sitting together in a boat, and that one of them happens to have a drill. Is there any

point at all in that person threatening to drill a hole in the boat and drown the other?

The same applies to the abstract concept of sovereignty, as Judge Mohammed

Shahabudden has pointed out:

Ruprecht, 1957; ibid., Der ungesicherte Frieden, 2. Aufl., Göttingen,1979; G. Anders, Die atomare

Drohung: Radikale Überlegungen zum Atomzeitalter, 6. Aufl., Munich, C. H. Beck, 1993.

85

“… however far-reaching may be the rights conferred by sovereignty, those rights can-

not extend beyond the framework within which sovereignty itself exists; in particular, it

cannot violate the framework. The framework shuts out the right of a State to embark

on a course of action which would dismantle the basis of the framework by putting an

end to civilization and annihilating mankind.”157

In another dissenting opinion, Judge Abdul G. Koroma, observed that

“…the Court flinched and failed to reach the only and inescapable finding, namely,

that in view of the established facts of the use of such weapons, it is inconceivable that

there is any circumstance in which their use would not violate the principles and rules

of international law applicable in armed conflict and, in particular, the principles and

rules of humanitarian law.”158

Thus, what is important is to see and to listen. To look at the devastation inflic-

ted on Hiroshima and Nagasaki. To listen to the testimony of victims. Compared to

these voices, abstract discussions about the “use” of nuclear weapons are irrelevant.

III. Concluding remarks: Making the law effective

The rules of international law that have been designed to constrain warfare are

far from perfect. The most alarming gap in this framework of rules is that the interna-

tional community has not yet succeeded in imposing a total ban on nuclear weapons.

But there are also urgent problems with regard to the implementation of existing

rules. Let me, in the context of prevention, make a few observations.

157 Dissenting Opinion of Judge Shahabuddeen on the ICJ’s Advisory Opinion Legality of the Threat or Use of

Nuclear Weapons of 8 July 1996 supra note Error: Reference source not found, p. 393.

158 Dissenting Opinion of Judge Koroma on the ICJ’s Advisory Opinion Legality of the Threat or Use of Nuc-

lear Weapons of 8 July 1996, supra note Error: Reference source not found, p. 581.

86

A. New weapons, means and methods of warfare

States Parties are obliged, under Article 36 of Additional Protocol I, to ensure

that the employment of new weapons, means or methods of warfare complies with

the rules of international law159. This seems to be a promising way to check the law-

fulness of weapons before they are actually used. The St Petersburg Declaration

succeeded in banning explosive projectiles of a particular kind before any army could

use them. This ban was based on the recognition that any military advantage

provided by these weapons would be temporary and would disappear sooner or later.

The same is true of any new weapon: even the most sophisticated ones will be rep-

licated at some stage. The provision in Article 36 of Additional Protocol I stipulates

that: “In the study, development, acquisition or adoption of a new weapon, means or

method of warfare, a High Contracting Party is under an obligation to determine

whether its employment would, in some or all circumstances, be prohibited by this

Protocol or by any other rule of international law applicable to the High Contracting

Party.” The result of such a review should lead the State in question to authorize,

regulate or prohibit the employment of a particular weapon or method of warfare, de-

pending on the circumstances. The lawfulness of weapons should be determined at

an early stage. States should involve the scientific community - medical, technical,

and environmental experts - in the processes of assessment and review160. Reviews

should take place as early as possible. That may be during the research-and-devel-

opment phase or when the weapon is ready or acquired. Reviews must, in any case,

159 I. Daoust, R. Coupland and R. Ishoey, “New wars, new weapons? The obligation of States to assure the leg-

ality of means and methods of warfare”, International Review of the Red Cross, Vol. 84, No. 846 (2002), pp.

345 et seq.

160 See, e.g., the study of the Institute of Medicine, National Academy of Sciences: F. Solomon and R.Q. Mar-

ston (eds), The Medical Implications of Nuclear War, Washington D.C., National Academy Press, 1986.

87

take place before a weapon is put into use. Finally, transparency in weapons reviews

is desirable.

B. Citizens taking centre stage

Initiatives taken by ordinary citizens can be instrumental in making the law ef-

fective. In 1999, a Scottish sheriff acquitted three activists who had been protesting

against an installation housing Trident missiles. Such missiles are not reconcilable

with international humanitarian law. The court dealt with the question for days and

based its judgment on the ICJ’s Advisory Opinion on the legality of the threat and use

of nuclear weapons161.

All of us should support this development: by trying to apply the spirit of inter-

national humanitarian law to arms control and, more precisely, by considering its fun-

damental principles as fully applicable to the law of weaponry162; by stripping the dis-

cussion of all technical subtleties and jargon; and by contesting the tendency to view

disarmament as exclusively a matter for expert panels. It is, in fact, a most pressing

matter and concerns each and every one of us. Perhaps the most pressing, and the

most neglected, issue for us to solve is nuclear, biological and chemical warfare.

Raising this subject often causes “realists” to roll their eyes. But some time ago, even

implacable “realists” such as Henry Kissinger and George Shultz bagan to talk of

161 See, e.g., BBC News, 21 October 1999, available at: <http://news.bbc.co.uk/2/hi/uk_news/scotland/

481385.stm>, accessed August 2010.

162 The law of weaponry, disarmament and arms control and its relationship to other legal subject is, as a matter

of fact, far from being sufficiently analysed and explored.

88

“nuclear madness.” As more States acquire nuclear weapons the likelihood of further

proliferation and of nuclear wars and nuclear terrorism will only grow.163

Nuclear weapons are – as Carl Gustav Jung said - a devilish means of de-

struction. They were invented by perfectly harmless gentlemen, by reasonable, re-

spectable citizens. And when the whole thing blows up and causes an indescribable

inferno, nobody seems to be responsible. It simply occurs, yet it is all man-made164.

How are we facing up to this risk? How can we break out of the stupor or fatalism that

seems to have gripped humanity? What can we do?

Two relatively new perceptions seem to hold out promise for the further devel-

opment of international law, and particularly for humanitarian law. The first is the

concept of human security165. A new paradigm in international law, this concept chal-

lenges the traditional notion of security centred on States by replacing it with one that

places the individual at the centre. From this point of view, the security of the indi-

vidual becomes one of the most important aspects of international politics. As for in-

ternational humanitarian law, human security proved especially relevant in the area

of disarmament and arms control, particularly for the Convention on anti-personnel

landmines. When human security became a paramount consideration, States could

163 As far as nuclear terrorism is concerned see e.g. Hoffman, Inside Terrorism, New York, Columbia Univer-

sity Press, 1998, pp. 196 et seq.

164 N.A. Lewin, Jung on war, politics and Nazi Germany: Exploring the Theory of Archetypes and the Collect-

ive Unconscious, London, Karnac Books, 2009, S. 80. I will come back to the question of what responsibilit-

ies scientists have in the final chapter.

165 Cf. B. von Tigerstrom, Human Security and International Law: Prospects and Problems, Oxford, Hart,

2007; J. Stein-Kaempfe, Human Security - Völkerrechtliche Aspekte eines internationalen

Sicherheitskonzeptes zu Beginn des 21. Jahrhunderts, Berlin, Duncker & Humblot, 2008.

89

no longer justify, by referring to national security interests, the enormous collateral

damage caused by landmines, their indiscriminate effects and their persistence after

conflict. And this led to the triumph of the argument that the wide-ranging adverse

post-conflict impact on human beings of anti-personnel mines far outweighed any

military advantage that those weapons offered. In addition to this shift, the most as-

tonishing aspect of the negotiations over the Convention was probably its multilater-

alism. While the UN and the ICRC remained the key players along with States like

Norway and Canada, the momentum for the process was provided by the involve-

ment of a number of civil society actors (NGOs, for instance) and the general public.

Therefore, it can reasonably be argued that this treaty has set new standards not

only in humanitarian advocacy but also in international lawmaking towards the cre-

ation of a more secure world.

This development leads us directly to the second insight: the importance of hu-

man consciousness. Human consciousness is probably more important than any in-

stitutional machinery. We all remember the use of chemical weapons against the

Kurdish villages of Halabja and Zardan in 1988. Hundreds were killed at a single

blow, the life of entire villages frozen in the blink of an eye, mothers and children torn

out of their daily lives, gassed on the spot where a moment ago they were carrying

out their daily tasks. These pictures have gone around the world. They are burnt into

our individual and collective memories. The same can be said about Kim Phuc, the

Vietnamese girl who was photographed in 1972 as she ran down a road naked, her

body scorched by napalm, in flight from the aerial bombardment of her village. The

photograph also shows a few screaming children running away from a number of

American soldiers equipped with helmets and machine guns. In the background, a

black cloud of smoke obscures the village that has just been destroyed. Kim Phuc

90

survived. Today, she says: “The destiny of Vietnam and a picture turned me into a

living symbol of the insanity of war.”166 She is convinced that the picture that made

her world-famous was and still is more powerful than bombs. As far as I know, no

comparable photographs of Hiroshima and Nagasaki exist. This is a matter of great

regret: such pictures could have sharpened human consciousness.

Kofi Annan, the former Secretary-General of the United Nations, has said that

we are “sleepwalking towards disaster.” Perhaps the Convention on Cluster Muni-

tions – thought impossible by most experts two years ago – can point the way: what

is most likely to succeed is a bottom-up approach. It is individuals whom international

humanitarian law protects, and it must be individuals who take up its cause and try to

further it. Therefore, two measures ought to be envisaged: first, we must open up in-

ternational legal institutions and procedures and make them more flexible so as to al-

low broader participation. Greater significance should be given to bottom-up ap-

proaches, i.e. initiatives from civil society and from other actors who do not usually

have access to international politics. This should not be confined to the relatively

small area of norm setting; it should also take in the wider field of preparing, imple-

menting and verifying rules167. Second, the effective realization of such reforms must

be accompanied by an increase in awareness of public concerns among international

lawyers, politicians and other actors.

166 Augenblicke der Menschlichkeit. A volume of photographes, including texts from Maeve Binchy, James

McBride and Kim Phuc, Knesebeck Verlag, 2007.

167 See, e.g., International Institute of Humanitarian Law, Strengthening Measures for the Respect and Imple-

mentation of International Humanitarian Law and Other Rules Protecting Human Dignity in Armed Conflict:

Challenges and Prospects, Proceedings of the 28th Round Table, Sanremo, 2-4 September 2004, available at

<http://www.iihl.org>, accessed August 2010.

91

CHAPTER THREE

HUMAN VALUES AND THEIR POTENTIAL: TWO WORLDS OR ONE?

“Words and concepts (such as those of due

process and equal protection) are only words

and concepts, to be sure, but they breed atti-

tudes, they tend toward a mind-set, they influ-

ence future thought and action.”

- Alexander M. Bickel168

International humanitarian law was, for a long time, a closed system of norms,

and of interest to only a few scholars and diplomats. But it is much more than that,

and its implications reach well beyond the realms of war and peace. As a matter of

fact, international humanitarian law is at the origin of modern human rights thinking. It

was a precursor to the modern human rights movement that emerged decades after-

wards with the Charter of the United Nations and the Universal Declaration of Human

Rights.

I. From the genius loci to the genius orbis ?

International humanitarian law – a product of the esprit de Genève – was

ahead of its time in focusing on the individual human being. From the very beginning,

it tried to alleviate the suffering of individuals by, if necessary, restricting the actions,

or the freedom to act, of States. In the 1860’s Louis Appia, one of the five founding

168 A.M. Bickel, The Morality of Consent, New Haven/London, Yale University Press, 1975, p. 6.

92

members of the International Committee of the Red Cross, declared, “to humanize

war, if that is not a contradiction, is our mission”169.

These words will sound familiar to the modern international lawyer. But they

draw on even older traditions. In The Social Contract, Jean-Jacques Rousseau made

the following observation:

“War then is a relation, not between man and man, but between State and State, and

individuals are enemies only accidentally, not as men, nor even as citizens, but as sol-

diers; not as members of their country, but as its defenders. Finally, each State can

have for enemies only other States, and not men; for between things disparate in

nature there can be no real relation (…) The object of the war being the destruction of

the hostile State, the other side has a right to kill its defenders, while they are bearing

arms; but as soon as they lay them down and surrender, they cease to be enemies or

instruments of the enemy, and become once more merely men, whose life no one has

any right to take.”170

Emer de Vattel, a Swiss scholar – to be exact, a citizen of Neuchâtel and not

of Geneva, but one touched by the esprit de Genève – who was writing before

Rousseau, in 1758, made a similar statement in his famous work, Droit des Gens:

“As soon as your enemy lays down his arms and surrenders, you no longer have any

right over his life.”171

It might be added that the 1949 Geneva Conventions expressly adopted the

language of human rights; and they were true to both the spirit and the traditions of

humanitarian thought172. It should also be recalled that Gustave Moynier, the first

president of the ICRC, was convinced that a tribunal was needed to pass judgment

169 C. Moorehead, Dunant’s Dream: War, Switzerland and the History of the Red Cross, London, Harper-

Collins, 1988, p. 22.

170 J.-J. Rousseau, op. cit., supra note Error: Reference source not found, Chapter 4.

171 E. de Vattel, op. cit., supra note Error: Reference source not found, Book III, Chapter VIII, para. 140.

93

on those who failed to comply with the rules of the 1864 Geneva Convention. After

the end of the Franco-Prussian War, which took place between 1870 and 1871, he

had realized that moral censure would never be enough. What was needed, Moynier

wrote, was a tribunal with judges from both neutral and belligerent countries 173. The

idea of such a tribunal resurfaced periodically but was not realized until many dec-

ades later.

After the Second World War, a system of human rights gradually unfolded174,

and a productive interrelationship between the two branches of law – international

humanitarian law and human rights law – came into being. Generally speaking, the

evolution of the human rights system led to dramatic changes in the established

structures of the international order. Previously, this international order had been

concerned only with States. But the human rights movement – as it is explained and

evaluated in detail by Christian Tomuschat175 brought the individual explicitly to the

forefront of international law. An interesting aspect of this paradigmatic shift was the

substantive enrichment of both human rights law and international humanitarian law

through mutual influence. In the field of human rights law, mechanisms of implement-

ation were created that have helped to enforce international humanitarian law, which

had its deficiencies in this regard. And Moynier’s dream - enforcing humanitarian law

through international criminal tribunals - was gradually and partially realized. There is

also a strong likelihood that humanitarian law will be influenced by a more recent de-

velopment in the realization and implementation of human rights: the creation of truth 173 C. Moorehead, op. cit., supra note Error: Reference source not found, p. 124.

174 T. Buergenthal, “Self-executing and non-self-executing treaties in national and international law”, Recueil

des cours, Vol. 235 (1992), pp. 303 et seq.

175 C. Tomuschat, Human Rights – Between Idealism and Realism, 2nd ed., Oxford, Oxford University Press,

2008.

94

and reconciliation commissions; it has been argued that in certain situations, such al-

ternative methods might be as well-equipped as, or even better equipped than, crim-

inal courts or tribunals to put into practice some of the principles of international hu-

manitarian law.

In this chapter I shall try to explore the two dimensions – substantive and

formal – that I have just mentioned. I shall focus first on the relationship between the

regimes of human rights law and international humanitarian law; and, afterwards, on

the means and methods of implementation and of fixing accountability – as they are

now, having gradually taken shape after the Second World War and – as I hope –

they will be in the years to come. I shall conclude this chapter with some remarks on

globalization and law.

II. International humanitarian law and human rights law: Structures and

processes

How are international humanitarian and human rights law related to each

other? It might help to first orient ourselves, by distinguishing between three possible

theoretical models. We shall then try, within the chosen theory to differentiate

between two perceptions of the issue: the first and more static one being the “rule-ex-

ception approach” and the second and more dynamic, the “mutual influence and os-

cillation” approach.

95

A. Three theoretical models 176 : Predominance of the theory of overlapping

circles

We have observed that international humanitarian law has had a life of its own

for a long time. One might, using modern terminology, call it a “self-contained re-

gime”. However, the rise of human right law within the Charter of the United Nations

put an end to this isolation, and necessitated clarification of the relationship between

humanitarian law and the new body of human rights law. Three basic theories have

been suggested.

The “theory of separation” holds that the two branches of law have different

histories; they also differ in their contents. They share no common ground. Clearly,

this theory has become untenable. It is no longer compatible with the practices of in-

ternational organizations and of States, both of which appeal, increasingly, to interna-

tional humanitarian law and human rights law in situations of armed conflict. Equally

strong tendencies can be detected in jurisprudence and doctrine to refer in parallel to

both regimes.

The “theory of fusion” holds that international humanitarian law and human

rights law have merged into a new and unique normative system. In this view, both

176 M. Bothe, “Humanitäres Völkerrecht und Schutz der Menschenrechte: Auf der Suche nach Synergien und

Schutzlücken”, in P-M. Dupuy, et al. (eds), Völkerrecht als Wertordnung, Festschrift für Christian

Tomuschat, Kehl, Engel, 2006, pp. 63 et seq.; M. Bothe, “The Historical Evolution of International

Humanitarian Law, International Human Rights Law, Refugee Law and International Criminal Law”, in H.

Fischer, U. Froissart, W. Heintschel von Heinegg and C. Raap (eds), Krisensicherung und humanitärer

Schutz, Festschrift für Dieter Fleck, Berlin, Berliner Wissenschafts-Verlag, 2004, pp. 37 et seq.; H-J.

Heintze, “On the relationship between human rights law protection and humanitarian law”, International Re-

view of the Red Cross, Vol. 86, No. 856 (2004), pp. 789 et seq.

96

branches have lost their identities and have become indistinguishable parts of a

normative whole. This was the theory underlying the Teheran Conference organized

by the United Nations in 1968, which dealt with international humanitarian law as “in-

ternational human rights in armed conflicts”177. This theory is just as wrong as the the-

ory of separation: neither theory reflects legal realities. That is because, both interna-

tional humanitarian law and human rights law, have, to a great extent, retained their

separate identities: different legal bases as far as content and spirit are concerned as

well as different sorts of mechanism for their implementation.

The truth, as the theories of “complementarity” and “convergence”178 correctly

maintains, lies in the middle. According to this theory, international humanitarian law

and human rights law resemble two overlapping circles. There are human rights that

are beyond the scope of humanitarian law, such as the right to vote; and there are

principles of humanitarian law with which human rights law is not concerned, such as

many of the rules regulating the conduct of hostilities. But increasingly, important

sections of both systems have not only the same goals but similar content as well.

This theory, thus, seems to be the most pertinent. It becomes more and more

evident, in international practice and in theory that neither of these branches of inter-

national law can be conceived of without the other. That human rights would become

177 See the Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22

April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

178 M. Bothe, “Humanitäres Völkerrecht und Schutz der Menschenrechte,” op. cit., supra note Error: Reference

source not found; M. Bothe, “The Historical Evolution of International Humanitarian Law,” op. cit., supra

note Error: Reference source not found; C. Droege, “The Interplay between International Humanitarian law

and International Human Rights Law in Situations of Armed Conflict,” Israel Law Review, Vol. 40 (2007),

pp. 310 et seq.; Heintze, op. cit., supra note Error: Reference source not found.

97

relevant for international humanitarian law was not immediately obvious. The first hu-

man rights instruments were drafted idealistically, in a time when it was assumed that

under the Charter of the United Nations peace would flourish. The need to provide for

the promotion and protection of human rights in times of war was just not felt. Also,

when the Universal Declaration of Human Rights was adopted in 1948 by the UN

General Assembly, no war clause was included179. This approach neglected the fact

that wars and other forms of organized violence were not going to disappear and that

human rights are most endangered during wars and national emergencies. However,

things changed and, gradually, a more realistic view began to assert itself. For in-

stance, the European Convention on Human Rights (1950) was based on the idea

that the scope of its application would include situations of armed conflict. The first

paragraph of Article 15 of this Convention reads like this:

“In time of war or other public emergency threatening the life of the nation any High

Contracting Party may take measures derogating from its obligations under this Con-

vention to the extent strictly required by the exigencies of the situation, provided that

such measures are not inconsistent with its other obligations under international law.“

Underlying this clause was the pragmatic acceptance that even though newly

created international institutions represented significant progress in the quest for

world peace, they would not do away with war and violence. Therefore, problems re-

lated to the applicability of human rights law in armed conflicts would continue to be

relevant.

Similarly, the first paragraph of Article 4 of the International Covenant on Civil

and Political Rights (1966) provides that:

179 Available at: <http://www.un.org/en/documents/udhr/>, accessed August 2010.

98

“In time of public emergency [sic] which threatens the life of the nation and the exist-

ence of which is officially proclaimed, the States Parties (…) may take measures

derogating from their obligations (…) to the extent strictly required by the exigencies of

the situation, provided that such measures are not inconsistent with their other obliga-

tions under international law and do not involve discrimination solely on the ground [sic]

of race, colour, sex, language, religion or social origin.”

Other human rights treaties contain similar clauses. These examples seem to

indicate that human rights law is now based on the idea that, generally, its applicabil -

ity endures in times of armed conflict. This is logical because, by their very nature,

human rights aspire to universality. In addition, in time of armed conflict human be-

ings are most vulnerable and human dignity needs special protection.

Instruments of humanitarian law, on the other hand, refer to principles and

rules outside that body of law. In this context, I should like to mention Article 75 of

Additional Protocol I. This provision grants a minimum of protection in times of armed

conflict to anyone who, for one reason or another, is unable to claim a particular

status (wounded, sick or shipwrecked combatants, prisoners of war, civilian persons,

in particular civilian internees). Article 75, paragraph 8, of Additional Protocol I states:

“No provision of this Article may be construed as limiting or infringing any other more

favourable provision granting greater protection, under any applicable rules of inter-

national law, to persons covered by paragraph 1.” Unlike human rights norms, this

“summary of legal principles” does not leave room for any derogation.

Thus, of the three theories that have been mentioned, the theory of overlap-

ping circles seems best equipped to describe, in a general way, the relationship

between international humanitarian law and human rights law. It reflects international

practice in the sense that the application of human rights law in armed conflict is uni-

99

versally recognized under contemporary international humanitarian law. This has

been the usual practice of the Security Council, the General Assembly, the Commis-

sion on Human Rights and now the Human Rights Council. They have repeatedly re-

affirmed the applicability of human rights in situations amounting to armed conflict180.

But how are the two regimes intrinsically linked to each other? When does one

set of rules prevail and when the other? The potency of international humanitarian

law, one might say, is directly proportional to the proximity of the battlefield. Thus, the

closer a particular legal situation is to the battlefield, the greater the precedence of in -

ternational humanitarian law. In law enforcement, human rights law generally pre-

vails. Law enforcement usually takes place within the framework of conventional

State institutions, which are for a for human rights law rather than humanitarian

law181. However, situations of urban violence, drug wars, military action against terror-

ism, violence connected with criminal gangs may evolve in such a way that interna-

tional humanitarian law becomes applicable. Thus situations may evolve so as to

move from one field of law to the other182. But this is only a rule of thumb that enables

one to distinguish very roughly between the applicability of international humanitarian

law and human rights law.

180 See Chapter VI, Section II. (???)

181 See C. Droege, op. cit., supra note Error: Reference source not found.

182 By the way, even if the situation is clear insofar that States engaged in an armed conflict, the State may

choose to deny its existence. This might be explained by political considerations, e.g. not wanting to admit that

internal violence has reached the level of an armed conflict, this might be considered as a failure of the

States’claim to be the only authority of legitimate power to have in control; it might also be interpreted – so

the respective State may fear – as acknowledgement that a territory is occupied and given rise to territorial

claims of the occupied or a recognition of secessionist entities.

100

It is important to keep in mind that human values are the foundation of both

systems183: they share a large common ground where they coexist and converge.

How is this common, overlapping area structured? According to the dominant doc-

trine the two regimes are complementary, but in exceptional cases humanitarian law

prevails. This suggests a rather static and mechanical relationship. It emphasizes the

steady expansion of human rights law and practice into fields traditionally reserved

for humanitarian law and the encroachment by humanitarian law on the classical do-

main of human rights law. And it implies that the relationship consists essentially of

the movement of parts of one system into the other, much as chess pieces are

moved from one part of the board to another or furniture from one room into the next.

However, under the influence of modern practice, a more dynamic vision of the rela-

tionship seems to have emerged: this emphasizes the interdependence of the two re-

gimes, and their connectedness through processes of mutual growth. Regarded from

this perspective, both systems of norms, rooted in ideas and in practice that are dif-

ferent from each other, are seen to be based on the same sets of values and as hav-

ing the same aspiration to evolve in the light of human dignity.

The difference between these two ways of regarding the relationship between

humanitarian law and human rights law – we may also label them “horizontal” and

“vertical” or as “complementary” or “convergent” – is mainly one of perspective; it has

rather less to do with the analysis of specific legal provisions in force. The first looks

at the prevailing state of affairs and tries to identify gaps in the system; the second

catches directive forces and movements of the system of rules in a broad sense. The

183 There are some, like the right to marriage or education, that are protected only by human rights law; others,

like the values underlying the rules of combat, belong exclusively to the domain of international humanit -

arian law; but the most interesting and vital space is the common ground where the two regimes coexist and

converge.

101

theory of overlapping circles thus provides the basis for tackling problems that are

especially delicate: it has to be further elaborated. The difficult task, for both theory

and practice, is to develop – case by case and within a more general scheme – cri-

teria for deciding how the two regimes relate to each other when they overlap. In or-

der to be able to better understand dynamics, we will discuss these two ways of re-

garding the relationship between humanitarian law and human rights law under differ-

ent headings: the first dealing with complementarity and the second with conver-

gences, symbiosis and oscillation. But we shall keep in mind throughout that there

are a great many similarities in the substance of human rights law and humanitarian

law; the two conceptions of the relationship between the two branches of interna-

tional law differ mainly in their vision of the development of that relationship, one

more static, or two-dimensional, the other more teleological or three-dimensional.

The first perspective stresses complementarity, the second convergence, but both

are anchored in he same person-centred universe of modern international law.

B. The rule of complementarity and the doctrine of lex specialis

102

This is a theory that may help us to decide when to apply international human-

itarian law and when human rights law184 and how the two are connected. It distin-

guishes between the general rule and the exception.

The general rule is based on the principle that international humanitarian law

applies only in situations of armed conflict but that human rights law continue to apply

in an armed conflict if and in so far as treaty guarantees have not been suspended

under the “emergency clause” of the relevant human rights treaty. The general rule

that human rights do not cease to apply during armed conflicts and in situations for

which there is applicable humanitarian law seems to be a logical one, as it is the pur-

pose of human rights law to protect persons at all times185. If human rights are inher-

ent in human beings, they cannot also be contingent – unless one believes that dur-

ing war both soldiers and victims cease to be human beings. Thus, the general thesis

is that international humanitarian law and human rights law must be applied concur-

rently. This rule is supported by the principles of treaty interpretation in international

law (as codified in Article 31 of the Vienna Treaty Convention); according to these

principles, when two bodies of law are applicable to a given situation, they must be

184 Cf. M. Bothe, “Humanitäres Völkerrecht und Schutz der Menschenrechte”, op. cit., supra note Error: Refer-

ence source not found; M. Bothe, “The Historical Evolution of International Humanitarian Law”, op. cit.,

supra note Error: Reference source not found; C. Droege, “The Interplay between International Humanitarian

Law and International Human Rights Law in Situations of Armed Conflict,” Israel Law Review, Vol. 40

(2007), pp. 310 et seq.; Heintze, op. cit., supra note Error: Reference source not found; M. Sassòli, “Le droit

international humanitaire, une lex specialis par rapport aux droits humains?”, in A. Auer, A. Flückiger and

M. Hottelier (ed.), Les droits de l’homme et la constitution, Etudes en honneur du Professeur Georgio Malin-

verni, Geneva, Schulthess, 2007, pp. 375 et seq.

185 A. Clapham, “Rights and responsibilities: A legal perspective”, in O. Jütersonkeant and K. Krause (eds),

From Rights to Responsibilities: Rethinking Interventions for Humanitarian Purposes, Geneva, The Graduate

Institute of International Studies, 2006, pp. 61 et seq.

103

harmonized. Therefore, international humanitarian law must be interpreted by the

light of human rights law, and vice versa. Let me give a few examples.

In several areas of the law, general congruence of content has been attained.

Several human rights and prohibitions come to mind: the right to life; the prohibition

of torture, cruel, inhuman or degrading treatment or punishment; the prohibition of ar-

bitrary arrest or detention; the prohibition of discrimination on grounds of race, sex,

language or religion; and the right to due process. Whenever, in the sort of situation

mentioned above, a human right is defined more precisely than a corresponding pro-

vision of international humanitarian law, it may “lead” – so it seems to me – the inter-

pretation of international humanitarian law. With regard to trials in non-international

armed conflicts, Article 3 common to the four Geneva Conventions (common Article

3), for example, refers to a “regularly constituted court affording all the judicial guar-

antees which are recognized as indispensable by civilized peoples”. Similarly, Article

84 of the Third Geneva Convention states that a prisoner of war may be tried only by

a court that offers essential guarantees of independence and impartiality as they are

generally recognized. Clearly, both provisions are accessible to interpretation by the

light of parallel guarantees contained in human rights instruments.

On the other hand, in various instances the provisions of humanitarian law are

more precise and demanding than their counterparts in human rights law; the latter

might then be interpreted by the light of the former in order to strengthen the rights of

the individual. In this context, the rights of the missing and the right to be reunited

with one’s family come to mind. Many more examples can be given. In the next sec-

tion, on “Symbiosis in living practice,” I shall address two particularly interesting is-

sues related to situations in which humanitarian law and human rights law overlap.

104

It has been demonstrated so far that humanitarian law and human rights law

reinforce each other, with the aim of providing the maximum freedom and protection

for the individual.

When human rights and humanitarian norms contradict each other, an ex-

ception seems to be indicated to the rule of complementarity. In such instances, in-

ternational humanitarian law – being lex specialis, or the more specific body of law –

prevails. In this regard, the International Court of Justice (ICJ) has authoritatively de-

termined that human rights provisions continue to apply in times of armed conflict,

unless a party has lawfully derogated from them186. In its advisory opinion on nuclear

weapons the ICJ declared that:

“[T]he protection of the International Covenant on Civil and Political Rights does not

cease in times of war, except by operation of Article 4 of the Covenant whereby certain

provisions may be derogated from in times of national emergency.”187

The Court thus clarified the relationship between the right to life under Article 6

of the International Covenant on Civil and Political Rights and the protection of life

under international humanitarian law188. It held that a renvoi to the applicable lex spe-

cialis, the law of armed conflict, was necessary in order to determine the legality of

any deprivation of life. The prohibition of arbitrary deprivation of life as laid down in

the Covenant was considered to apply. But in determining whether, in an armed con-

flict, such deprivation is arbitrary the Court referred to the lex specialis. One therefore 186 T. Meron, The Humanization of International Law, Leiden/Boston, Martinus Nijhoff, 2006, p. 46.

187 ICJ, “Legality of the Threat or Use of Nuclear Weapons,” Advisory Opinion of 8 July 1996, supra note Er-

ror: Reference source not found, para. 25.

188 L. Doswald-Beck, “The right to life in armed conflict: Does international humanitarian law provide all the

answers?” International Review of the Red Cross, Vol. 88, No. 864 (2006), pp. 881 et seq.

105

has to turn to the law applicable in armed conflict, which is designed to regulate the

conduct of hostilities. Thus, whether a particular case of loss of life, caused by the

use of certain weapons in warfare, is to be considered an arbitrary deprivation of life,

contrary to Article 6 of the Covenant, cannot be decided from the terms of the Coven-

ant itself but only by referring to the special law applicable in armed conflict189. In

other words, planning an operation with the intention of killing is, of course, not lawful

under human rights law. But this is not to say that intentional killing is never permit -

ted: it is lawful when, in order to protect life, it is deemed to be strictly unavoidable;

for example, in instances of self-defence, even a warning may not be required. But

this standard is very different from the one applied to a planned operation in an

armed conflict. International humanitarian law permits the killing of enemy com-

batants and even incidental loss of civilian life and injury to civilians caused by an

armed attack, but requires that such loss of life or injury not be excessive in relation

to the concrete and direct military advantage that is anticipated190.

189 T. Meron, op. cit., supra note Error: Reference source not found, p. 46.

190 Protocol Additional I to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of

International Armed Conflict, 8 June 1977, Article 51 (5) (b) and Article 57 (2) (a) (iii).

106

In its 2004 Advisory Opinion on the Legal Consequences of the Construction

of a Wall in the Occupied Palestinian Territory, the Court confirmed the general ap-

plicability of international human rights law to situations of military occupation 191. The

Court clove to the approach chosen in the Nuclear Weapons Opinion considering

that:

“there are thus three possible situations: some rights may be excli~sively matters of international

humanitarian law; others may be exclusively matters of human rights law; yet others may be

matters of both these branches of international law. In order to answer the question put to it, the

Court will have to take into consideration both these branches of inlernational law, namely hu-

man rights law and, as lex speciuli.~, international humanitarian law.”192

However, the Advisory Opinions can be critized for they did rarely supply

enough substance to better understand the interplay of human rights and humanit-

arian law. Although they confirmed the lex specialis rule in cases of parallel applica-

tion, the ICJ failed to provide a clear methodological framework capable of clarifying

the co-existence of the two disciplines.193

To conclude: when humanitarian law and human rights law overlap, the proper

approach for solving problems concerning the relationship between them seems to 191 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory

Opinion of 9 July 2004, ICJ Reports 2004, paras 106 et seq. Similarly, the Court delivered a binding judg-

ment in the case Democratic Republic of the Congo v. Uganda one year later applying international human

rights law to an occupation and referring to the findings of the Wall Advisory Opinion; see ICJ, Case Con-

cerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),

Judgment of 19 December 2005, ICJ Reports 2005, para. 216.

192 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory

Opinion of 9 July 2004, ICJ Reports 2004, paras 106.

193 See for a critical view e.g. N. Prud'homme, “Lex Specialis: Oversimplifying a More Complex and Multifa-

ceted Relationship”, Israel Law Review, Vol. 40, Issue 2 (Summer 2007), pp. 356 et seq.,

107

be this: the general rule of complementarity applies. However, in exceptional cases,

the more specific rule prevails.

C. Symbiosis in living practice: The doctrine of convergence

1. In general

108

Humanitarian law and human rights law overlap to a great extent. We have

already discussed how they complement each other, forming an interdependent

whole. But we should not conceive of the relationship between them only in the

severely mechanical way of complementarity, of rules and exceptions. We shall now

try to shed some light on the dynamic nature of the convergence of these normative

regimes, the changing structure of these regimes and the evolving character of their

convergence. Both humanitarian law and human rights law are involved in the trans-

formation of the international legal order into something in which universal human

values or goals take precedence over all other considerations.

109

Instances of the mutual growth and convergence – i.e. the fact that the two re-

gimes develop together and in an interconnected way – are to be found most fre-

quently in situations of non-international armed conflict and of belligerent occupation.

Humanitarian law and human rights law, together with domestic law, reinforce each

other.

a. Non-international armed conflicts as a source of growth for international law

110

1. Methodologial questions

As has been discussed in Chapter I, the nature of warfare has changed quite

dramatically in recent years. Modern armed conflicts are now, overwhelmingly, fought

by States and non-State actors, within States or across State borders; they are pre-

dominantly non-international in character. Some newer international treaties and in-

struments reflect this trend and incorporate rules applicable in situations of internal

violence, drawn from both human rights law and humanitarian law.194

194 This is true of the Convention on Certain Conventional Weapons of 1980, the Rome Statute of the Interna-

tional Criminal Court of 1998, the Optional Protocol to the Convention on the Rights of the Child on the in-

volvement of children in armed conflict of 2000, the Basic Principles and Guidelines on the Right to a Rem-

edy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Viola-

tions of International Humanitarian Law adopted by the UN General Assembly in 2005, and most recently,

the Convention on the Rights of Persons with Disabilities of 2006. Convention on Prohibition or Restrictions

on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have

Indiscriminate Effects of 10 October 1980, entry into force on 2 December 1983; Rome Statute of the Inter-

national Criminal Court of 17 July 1998, entry into force on 1 July 2002; Optional Protocol to the Conven-

tion on the Rights of the Child on the involvement of children in armed conflict of 25 May 2000, entry into

force on 12 February 2002, UN Doc. A/RES/54/263; Basic Principles and Guidelines on the Right to a Rem-

edy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Viola-

tions of International Humanitarian Law of 21 March 2006, UN Doc. A/RES/60/147, Convention on the

Rights of Persons with Disabilities of 13 December 2006, entry into force on 3 May 2008. See C. Droege, op.

cit., supra note Error: Reference source not found, p. 507.

111

In modern international law, a new dynamic between humanitarian law and human

rights law emerged. As has already been noted, humanitarian law was first estab-

lished at the international level. After the Second World War, developments in inter-

national humanitarian law began to respond to the growing trend of violence within

States. We think, for instance, of common Article 3 on non-international armed con-

flicts and Additional Protocol II of 8 June 1977. The question has, however, arisen if

the rules governing non-international armed conflict are still adequate.

As far as interpretation is concerned, it seems to be interesting that provi-

sions with the same or similar wording may be interpreted one by the light of the oth-

ers. As we have already indicated, some provisions of international humanitarian law

– e.g. the judicial guaranties laid down in common Article 3 of the Geneva Conven-

tions are less precise than the corresponding provisions of human rights law and

might be developed by referring to them. In other cases – e.g. the right to family uni-

fication – international humanitarian law is more developed and might serve as a

source of interpretation for human rights law. But there are also situations in which a

solid normative framework is lacking or in flux and needs systematic development

nourished by various sources. Thus, various elements of interpretation and legal en-

gineering – clarification of lex lata and development in the way of lex ferenda – have

emerged in the law of internal armed conflict and this field of law has become labor-

atory to combine changing and producing new forms of law.

The interplay of human rights law and international humanitarian law poses

most delicate, but also most interesting, dogmatic problems. Non-international armed

conflicts are a fertile ground in which questions of interpretation and development of

the law and law-making arise. More systematically we may ask if it is reasonable to

112

assume that there is a minimum standard of humanity connecting basic norms of hu-

manitarian law, human rights law and national constitutional law or if it is preferable

to develop the law along certain lines already laid down in the positive law in force.

We may thus distinguish between two methods of tackling the problem: a “minimum

fundamental standard” or a “pillar approach”.195

The minimum standards approach was launched in 1990 by a group of aca-

demics gathered in Turku which adopted a declaration on “minimum humanitarian

standards” (the Turku Declaration). This is a non-binding text that referrs to situations

of internal violence, whether a state of emergency had been declared or not, and in

which certain human rights had been derogated from, but the violence had not

reached the level of a non-international armed conflict (which would allow the protec-

tion granted by common Article 3 and Protocol II to become applicable).The right to a

fair trial might serve as an example: it is non-derogable under international humanit -

arian law, but may be derogable under certain conditions in a state of emergency,

pursuant to human rights law. It was the ambition of the Turku group to identify a set

of core principles that would have to be respected by all actors in all circumstances.

The project was widely discussed in the years that followed196; finally, Norway intro-

duced a resolution on “fundamental standards of humanity” at the Human Rights

Commission and then at the Human Rights Council. However, the need for such an

195 Elements of the following are drawn from internal papers drafted by the Legal Division of the ICRC; the fi-

nal drafts of these papers have not yet been prepared, which is why they cannot be cited as ICRC position pa-

pers.

196 See, e.g., T. Meron and A. Rosas, “A declaration of minimum humanitarian standards,” American Journal of

International Law, Vol. 85 (1991), pp. 375 et seq. and A. Eide, A. Rosas, and T. Meron, “Combating law-

lessness in gray zone conflicts through minimum humanitarian standards”, American Journal of International

Law, Vol. 89 (1995), p. 215. The Turku Declaration was published in this issue of the journal.

113

instrument of soft law has since lessened because of a number of advances in inter-

national law: We may refer to the General Comment No. 29 of UN Human Rights

Committee on states of emergency197, which expanded the list of rights that may be

considered non-derogable in states of emergency; the establishment of international

criminal tribunals with jurisdiction over serious crimes under international law, includ-

ing those committed by persons belonging to non-State armed groups198; opinions

and judgments of the International Court of Justice related to the interplay of human-

itarian law and human rights law; and the publication of the ICRC’s study on custom-

ary law. There have been other evolutions in the law, which are relevant in this con-

text but these are the most salient.

Notwithstanding the originally brilliant idea of codifying minimum standards of

humanity, one may still pursue a different approach, the so-called “pillar approach”.

This would consist of identifying specific areas of law where there is an operational

need to establish norms protecting all persons in all circumstances. These areas may

be regarded as a legal no-man’s land, between the law as it is and the law as it

should or needs to be. I shall try to demonstrate what I mean by describing four “pil -

lars”: procedural principles and safeguards for administrative detention and intern-

ment, internally displaced persons, missing persons and belligerent occupation.

2. Areas in need of development

197 UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4 of the Interna-

tional Covenant on Civil and Political Rights), 31 August 2001. UN Doc. CCPR/C/21/Rev. 1/Add. 11.

198 See below Chapter Five.

114

aa) Procedural principles and safeguards for internment and administrative detention in

armed conflicts and other situations of violence 199

Internments and administrative detentions are forms of deprivation of liberty

for security reasons. They are exceptional measures of control that may be taken

during armed conflict, whether international or non-international. But administrative

detention of persons believed to represent a threat to State security is also being im-

posed – with ever increasing frequency – in situations other than armed conflict. In

the matter of protecting the rights of persons affected, both internment and adminis-

trative detention are insufficiently elaborated. This is the case primarily in non-inter-

national armed conflicts. There are some basic norms in legal instruments regulating

international armed conflicts. But it is not at all clear how administrative detention

should be dealt with in non-international armed conflicts. The basic rules of non-inter-

national armed conflict are crystallized in common Article 3. They are the hard rock

on which this body of law is built and incorporate, in the words of the International

Court of Justice, the “essential fundamental principles of humanity.”200 But they con-

tain no relevant provisions on internment and administrative detention apart from the

requirement of “humane treatment” and no longer satisfy all the humanitarian needs

that are emerging from practice. Of course, the law may be interpreted afresh and

adapted. For instance, it will not be at all difficult to interpret judicial guarantees, as

they are laid down in Article 3, by the light of modern standards for the protection of

human rights. In other instances, however, initiatives should be taken to create new

treaty law. As there are no rules governing the internment of individuals in non-inter-

199 J. Pejic, “Procedural principles and safeguards for internment/administrative detention in armed conflict and

other situations of violence,” International Review of the Red Cross, No. 858 (2005), pp. 375 et seq.;

200 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found.

115

national armed conflicts, it will be necessary to draw on human rights law when de-

vising procedural principles and safeguards to regulate internment in such conflicts.

Internment is the term used in international humanitarian law to denote the

detention of a person believed to pose a serious threat to the detaining authority’s se-

curity, without the intention of that authority of bringing criminal charges against him

or her. Under humanitarian law internment must end as soon as the reasons for it

cease to exist; the maximum length of internment permitted by the law is for the dura-

tion of the armed conflict in relation to which a person was apprehended. As has

already been noted, there are no treaty provisions on procedural safeguards for in-

ternment in non-international armed conflicts. Most conflicts nowadays are non-inter-

national and internment is widely practised; the lacuna created by the absence of

pertinent provisions gives rise to a legal condition that one may term “arbitrary deten-

tion”.

New treaty rules should be established for detention. They should first of all

deal with the material conditions of detention (registration of detainees, access to

food and water, accommodation, medical services, etc.); they should then provide for

a system of obligatory visits to the places concerned. In this context, ‘detention’ may

also include the transfer of persons. People fearing for their safety on being released

or returned to their country of origin or to another country: this is nothing new. The

principle of “non-refoulement is of great consequence for the protection of persons

who might be at risk when they are transferred. This principle prohibits the transfer of

persons to another country when there is a substantial risk that they will be subjected

to persecution or to other violations of their rights, such as torture or other forms of ill-

116

treatment or arbitrary deprivation of life through murder or through an unfair trial that

may result in their being sentenced to death.

bb) Internally displaced persons

As Jakob Kellenberger, the president of the ICRC, has said, internal dis-

placement poses “one of the most daunting humanitarian challenges today.”201 No

one is certain of the exact number of internally displaced persons in armed conflict:

far too many stay unseen, uncared for and uncounted. But estimates put the figure at

roughly 26 million, many of whom have been displaced by armed conflict. In coun-

tries like Afghanistan, Colombia, the Democratic Republic of Congo, Georgia, Kenya,

Liberia, Pakistan, the Philippines, Somalia and Sudan. They have been driven from

their homes and deprived of security, shelter, food, water, livelihood and the support

of their communities. Displacement is frequently caused by violations of international

humanitarian law: attacks on civilians and civil property, the destruction of objects es-

sential to the survival of civilians, the starving of civilians as a method of warfare,

methods of reprisal involving the use of civilians as human shields, and the abstrac-

tion of relief supplies and assistance necessary for the survival of the civilian popula-

tion. Protecting the civilian population and meeting their needs requires a huge, and

concerted, effort by the international humanitarian community. Those who stay or

host the displaced can be as vulnerable as those who flee or those who return to

their homes. Unlike refugees, internally displaced persons are not yet covered by a

specific international convention. Legal protection for them, as well as assistance, is

largely dependent on domestic legislation, which is often non-existent, does not com-

prehensively address the threats faced by the vulnerable, is disregarded or is not im-

201 J. Kellenberger, “The ICRC’s response to internal displacement: Strengths, challenges and constraints,” In-

ternational Review of the Red Cross, Vol. 91, No 875 (2009), p. 475.

117

plemented effectively. However, most States have recognized the United Nations’

Guiding Principles on Internal Displacement202, which are based on humanitarian law

and human rights law, but are not legally binding. The Guiding Principles emphasize

the fact that national authorities are responsible for securing the conditions that will

enable the displaced to return voluntarily, safely, and with dignity. Alleviating the

misery of these vulnerable people, many of them women and children, is one of the

most serious challenges before the international legal community. To this end, do-

mestic law and provisions of humanitarian law and human rights law have all been

established. But they remain silent and vague on many subjects and require coordin-

ation, clarification and progressive development. A new regime of norms, composed

of elements of various legal (or non-legal) regimes.203

cc) Missing persons

Another pressing issue that must be discussed in this context is the subject

of missing persons or forced disappearances. Forced disappearances contravene

humanitarian law in wartime; they are always in violation of human rights law. The

ICRC works tirelessly to prevent forced disappearances, because a forced disap-

pearance is tantamount to deleting a person’s very existence: Jakob Kellenberger

has said that “[forced disappearances] negate the very existence of the human being

and deny the person the basic legal protection to which every man or woman is en-

titled, no matter whether they are guilty or innocent. It is also a violation of the rights

of the missing person’s next of kin.”204 Forced disappearances create far-reaching

202 UN Guiding Principles on Internal Displacement of 17. April 1998. UN Doc. E/CN./4/1998/53, Add.2.

203 Cf. F. Bugnion, “Refugees, Displaced Persons and International Law”, Refugee Survey Quarterly, Vol. 20,

No. 2, p. 22, arguing against the creation of a new international instrument.

204 J. Kellenberger, “Ending enforced disappearances: A matter of urgency for the sake of humanity and

justice,” Speech on the occasion of the official ceremony to mark the opening for signature of the Interna-

118

and long-lasting traumas for the families of missing persons, who are kept completely

ignorant of the fate of their missing relatives. That is why, inter alia, organizations of

families of disappeared persons undertook a long struggle, which culminated in the

adoption of the International Convention for the Protection of All Persons from En-

forced Disappearance by the UN General Assembly on 20 December 2006205. The

Convention is not yet in force: at the time of writing it has been signed by 82 States

and ratified by 18206. There are three ways to address the issue and the Convention

managed to enshrine all three. The first and most important is to prevent forced dis-

appearances from taking place: the Convention requires States to hold all persons

deprived of liberty in officially recognized locations, to maintain up-to-date official re-

gisters and detailed records of all detainees, to permit detainees to communicate with

their families and legal counsellors and to give competent authorities access to de-

tainees. The second way to address disappearances is to recognize the rights of

families whose relatives have gone missing, especially the right to know their fate.

And the third is to ensure adequate criminal sanctions against persons who are culp-

able of the crime207.

tional Convention for the Protection of all Persons from Enforced Disappearance, Paris, 6 February 2007.

Available at: <www.icrc.org/web/eng/siteeng0.nsf/html/enforced-disappearance-statement-090207, accessed

August 2010.

205 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December

2006, UN Doc. A/RES/61/177.

206 This information is available at:

<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATYandmtdsg_no=IV-

16andchapter=4andlang=en>, accessed August 2010.

207 Statement by J. Forster at the Panel on the Convention against Enforced Disappearance, 61st session of the

United Nations Human Rights Council, Geneva, 26 September 2007.

Available at: <http://www.icrc.org/web/eng/siteeng0.nsf/html/enforced-disappearance-statement-260907, ac-

cessed August 2010.

119

b) Belligerent occupation 208

The law of belligerent occupation was codified in the Hague Declarations and

Conventions of 1899 and 1907. The provisions contained in these instruments consti-

tute customary law now. The Fourth Geneva Convention developed this regime in

great detail. Additional Protocol I added a few details.

Occupation essentially means effective control of territory, as implied by the

definition set forth in article 42 of the Hague Regulation of 1907. Broadly speaking,

the law of occupation provides the legal framework for the temporary exercise of au-

thority by the occupier, trying to strike a balance between the security needs of the

occupier and the interests of the ousted authority as well as those of the local popula-

tion. Under occupation law as it is traditionally interpreted, the sovereign title must

not pass to the occupier, who must preserve as far as possible the status quo ante.

In other words, the occupying power must respect the existing laws and institutions

208 See M. Bothe, “Effective control: A situation triggering the application of the law of belligerent occupation”

(manuscript); A. Roberts, “Transformative military occupation: Applying the laws of war and human rights,”

American Journal of International Law, Vol. 100 (2006), pp. 580 et seq.; A. Roberts, “Transformative milit-

ary occupation: Applying the laws of war and human rights”, in M. Schmitt and J. Pejic (eds), International

Law and Armed Conflict: Exploring the Faultlines – Essays in Honour of Yoram Dinstein, Martinus Nijhoff,

Leiden/Boston, 2007 (quoted: Essays in Honour of Yoram Dinstein), pp. 439 et seq.; R. Wolfrum, “The Ad-

equacy of International Humanitarian Law Rules on Belligerent Occupation: To what Extent may Security

Council Resolution 1483 be considered a Model for Adjustment?”, in M. Schmitt and J. Pejic (eds), Essays in

Honour of Yoram Dinstein, pp. 497 et seq.; D. Thürer and M. MacLaren, “’Jus Post Bellum’ in Iraq: A Chal-

lenge to the Applicability and Relevance of International Humanitarian Law?”, in K. Dicke, S. Hobe, K.-U.

Meyn, A. Peters, E. Riedel, H-J. Schütz and C. Tietje (eds), Weltinnenrech,: Liber amicorum Jost Delbrück,

Berlin, Duncker & Humblot, 2005, pp. 753 et seq.; D. Thürer, “Current Challenges to the Law of Occupa-

tion, 6th Bruges Colloquium, Bruges 2005.

120

and make changes only when they are necessary to fulfil its duty, under the law of

occupation, to maintain public order and safety, to ensure orderly government and to

preserve its security.

The occupations which the authors of the Hague Regulations had in mind had

come about when, during an armed conflict, the forces of one party drove the forces

of the other party from sections of their own territory. However, the character of milit -

ary occupations in modern times has often been quite other. First of all, they have

lasted longer. The occupation of the northern part of Cyprus by Turkey, and of the

territories in Palestine by Israel, comes to mind. Occupation has also taken place in

quite different contexts: for instance, Iraq and Afghanistan (whereas Eritrea, Djibouti

and Nagorny Karabach resemble the classic model)209. The old law of belligerent oc-

cupation has often seemed inadequate for dealing with such situations; and this

raises many questions about the applicability of traditional rules. The traditional view,

of balancing the security interests of the occupier against the rights of the occupied

population, remains valid. But how does one balance competing interests when the

circumstances of modern military occupations have changed? While analysing a

legal regime, one must define the interests that have to be accommodated in that re-

gime.

International occupation law has been challenged repeatedly, on the basis that

it is not up to the task of dealing with the polymorphic nature of occupation today.

Many States are reluctant to accept its applicability to situations in which they are in-

209 And, finally, there is the question of whether the term occupation is applicable – as such or in modified form

– to the administration of foreign territories: for instance, the UN in Timor or in Kosovo. These questions are

equally relevant when the transformative goals of occupation have been set under the UN Security Council’s

mandate (i.e. Kosovo and Timor).

121

volved; they often justify their unwillingness by saying that these situations are very

different from the classical concept of belligerent occupation, and must be dealt with

by standards other than those provided by the law of occupation as it now is. Some

scholars have argued that more recent concepts of public international law that have

come to be regarded as fundamental, such as the provisions of human rights law and

self-determination, have not been sufficiently reflected in occupation law. As the ICJ

pointed out recently210, human rights norms are increasingly recognized as applicable

in situations of occupation. However, when an occupying force, or agency, sets itself

certain transformative goals, limits must be placed on the extent of the changes that

it is permitted to bring about. An occupier may be given a certain amount of flexibility

in implementing human rights, including the right to self-determination, but that cer-

tainly does not amount to a carte blanche for changing laws and institutions, in the

name of human rights, to make the occupied territory conform to its own legal, cul -

tural and economic values.

International humanitarian law as it relates to the subject of occupation is si-

lent, vague or contained in loose definitions. Should it be re-interpreted by the light of

changes in contemporary international law?

***

We have dealt with the structure and processes of humanitarian law and of in-

ternational human rights law. It would have taken us beyond the scope of this chapter

210 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v.

Uganda), Judgment of 19 December 2005, ICJ Reports 2005.

122

if we had tried to analyse this subject in more detail and depth: it is too complex and

the danger of oversimplifying too great. We may summarize our reflections like this:

The evolution of humanitarian law and human rights law has been dra-

matic, the result largely of new legal instruments and developments in

practice.

Both legal regimes appear to have retained their distinctive identities but

they function as parts of an integrated whole as they both aspire to pro-

mote human dignity. They are evolving in the same direction.

123

Even though both normative systems share the same values and belong

to a common integrated whole, and have the same ends, the two tenden-

cies that I have mentioned – the complementary or the convergence ap-

proach – can be differentiated. However, no bright line can be drawn

between them. Some situations demand that the status quo be preserved

and legal lacunae in both normative systems filled by referring to each

other, whereas other situations are in flux and need a more dynamic,

“creative” development.

More research has to be undertaken with regard to subjective rights

granted to human beings under positive humanitarian law211, and possib-

ilities examined for interpreting, under the influence of human rights law,

principles expressed by way of objective obligations as rights of individu-

als or collectives212. Human rights must be understood not just as collec-

tion of entitlements to be enforced by courts but more broadly, by laying

bare the principles of humanity that are their basis and overarching hu-

man rights systems.

211 In various instances, international humanitarian law grants, expressis verbis, individual rights although, char-

acteristically, they are framed in objective obligations: for example, Article 7 of Geneva Conventions I to III

and Article 8 of Geneva Convention IV provide as follows: “[Protected persons] may in no circumstances re-

nounce in part or in entirety the rights secured to them by the present Convention, and by the special agree -

ments referred to in the foregoing Article, if such there be.”

212 This was a prominent feature of the development of European Community law: the Court of the European

Communities, which regarded itself as a motor of European integration, has, since the van Gend and Loos

case, deduced the right of persons and enterprises from objective constituting the “Common Market”. By en-

abling private actors to claim rights through judicial systems, the Court established the figure of “market cit -

izens” as motors of integration. The same intensive pull(?) of integration is not visible within the universal

order, but – over time – similar tendencies of coherence may come into play here too.

124

What has been said about the normative system is not always true of op-

erations on the ground. Organizations are guided by their own principles

and purposes, and their ambitions are not the same, neither in the field

nor in diplomatic fora. For example, it is absolutely vital for the ICRC to –

based on its international mandate – have access to those who are af-

fected by situations of armed conflict and other forms of violence. To

have such access it has to be within reach of the persons in question: it

has to be able to move freely within that country; it cannot be confined to

fortified positions in the capital city. In order to do its work the ICRC

needs a certain level of security and the acceptance of all the parties to a

conflict. By “all the parties” I mean State actors, armed forces, the vari-

ous pertinent ministries and non-State-actors. If all the parties to a con-

flict do not accept the ICRC it simply cannot function213. The ICRC seeks

to fulfil its unique mandate by strictly observing three operational prin-

ciples: independence, neutrality and impartiality214. Consequently, even if

international humanitarian and international human rights law are in a

process of complementing each other, of converging of growing together,

the ICRC (as well as National Red Cross and Red Crescent Societies)

would follow its own operating procedures. It does so in order to serve, in

213 B. Staehelin, “Recent advancements in IHL implementation by National Committees”, in ICRC, Report of

the Second Universal Meeting of National Committees on International Humanitarian Law, Geneva, 2007, p.

29.

214 See, e.g. J. Moreillon, “Du bon usage de quelques Principes fondamentaux de la Croic-Rouge, in C. Swi-

narski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of

Jean Pictet, Geneva/The Hague, ICRC/Martinus Nijhoff, 1984, pp. 913 et seq.; “D. Thürer, La pyramide de

Dunant: Réflexions sur ‘l’espace humanitaire’”, Revue Internationale de la Croix-Rouge, Vol. 89, Sélection

française, 2007, Geneva, p. 51 et seq.

125

its own way, its specific mandate and resist the temptation of being

drawn into associations or working relationships that might damage its

ability to fulfil its humanitarian mission.

III. Accountability: Procedures and mechanisms

Effectiveness is inherent in the idea of law. We should, however, not be too

demanding, or at least not expect results right away. Thomas Hobbes was of the

opinion that “covenants, without the sword, are but words”215. Justice Oliver Wendell

Holmes Jr. of the United States Supreme Court insisted on this definition of law:

“prophecies of what the courts will do in fact, and nothing more pretentious”216.

Holmes held that it was no use talking about “rights” in the abstract; what mattered

were remedies. If there is no remedy, no court to enforce a norm, then it is, according

to Holmes, not meaningful to speak of that norm as “law.” The British philosopher

John Austin identified law with the “command of the sovereign”217. All these views

represent an excessively narrow idea of law. We will not follow this line of thinking,

which is rooted in the age of positivism and in the cult of sovereignty. It does not re-

flect the way law operates within States and on the international plane; it would re-

duce international law to mere expediency. In addition, it takes time for norms to be

absorbed: they gain strength through constant application – sporadic at first, per-

haps, but growing more frequent and acquiring substance with each application.

Think of the scepticism with which the indictments of Slobodan Milošević, Radovan

215 See H. Arendt, Macht und Gewalt, 10th ed., Munich/Zurich, Piper, 1995, p. 9.

216 O. Wendell Holmes Jr., “The Path of the Law”, Harvard Law Review 10, 457 (1897), para. 8.

217 J. Austin, The Province of Jurisprudence determined, W.E. Rumble (ed.), Cambridge, Cambridge University

Press, 1995. He wrote:“(…) laws properly so called are a species of commands. But being a command, every

law properly so called flows from a determinate source.”

126

Karadžić and Ratko Mladić were received. Now, Mladić is the only one of the three

main culprits still at large.

However, without a minimum degree of effectiveness, a norm or normative

system cannot be called law. I am not suggesting that a norm, in order to be con-

sidered law, must be backed by the power to enforce it. But, generally, means and

mechanisms of accountability – which means methods to hold officials (and other

people in power) responsible for their acts and punishing them if they have commit-

ted violations218 – should be available219. International humanitarian law is weak in the

sense that, besides the monitoring activities of the ICRC, it is difficult to identify

(working) procedures designed to back it up and to give effect to its rules. There is no

judge or policeman standing on the sidelines of the battlefield, as the British military

historian John Keegan220 once said. However, there are three ways of doing this that

might be mentioned: human rights mechanisms, criminal courts and tribunals, and

truth and reconciliation commissions221.

218 S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the

Nuremberg Legacy, Oxford, Clarendon Press, 1997, p. 3.

219 P. Zahnd, “How the International Criminal Court should help implement international humanitarian law”, in

Dinah Shelton (ed.), International Crimes, Peace, and Human Rights: The Role of the International Criminal

Court, New York, Hotei Publishing, 2000, p. 44.

220 Quoted in M. Ignatieff, “Die Ehre des Kriegers," in H.M. Enzensberger (ed.), Krieger ohne Waffen: das

Internationale Komitee vom Roten Kreuz, Frankfurt, Eichborn, 2001, p. 19: "Dort, wo in einer Schlacht

getötet wird, gibt es keine Richter, keine Polizisten!"

221 ICRC forum, War and Accountability, Geneva, 2002.

127

A. Human rights mechanisms 222

All major human rights treaties establish, on the international level, a right to

remedies and individual standing223. Mechanisms for individual complaint produced

case law. Enforcement mechanisms have evolved on the basis of individual entitle-

ments and of private standing, both in domestic courts and before international bod-

ies. On the other hand, humanitarian law was not, or at least not exclusively, con-

ceived with the individual’s procedural rights in mind; it is difficult to imagine how hu-

manitarian law would incorporate all the procedural rights that have developed in hu-

man rights law. More advanced procedural safeguards exist for the protection of indi-

vidual rights. It is a characteristic feature of human rights instruments that they guar-

antee rights to individual remedies, independent and impartial investigations and indi-

vidual reparations. At the international level, there are no procedures regarding indi -

vidual complaints for victims of violations of humanitarian law.

However, there are cases in which human rights courts and court-like or other

monitoring bodies have applied or have – directly or indirectly – referred to humanit-

arian law. For instance, the Inter-American Court of Human Rights relied on provi-

sions of international humanitarian law while construing the rights laid down in the

American Convention on Human Rights In the jurisprudence of the European Court

of Human Rights224, we find a statement that the Geneva Conventions were applic-

222 F. Martin, “Application du droit international humanitaire par la Cour inter-américaine des droits de

l’homme", International Review of the Red Cross, Vol. 83, No. 844 (2001), pp. 1037 et seq.

223 T. Buergenthal and D. Thürer, Menschenrechte – Ideale, Instrumente, Institutionen, Dike/Nomos,

Zurich/Baden-Baden, 2009, pp. 187 et seq., 297 et seq., 319 et seq.; C. Droege, "Elective affinities? Human

rights and humanitarian law," International Review of the Red Cross, Vol. 90, No. 871 (2008), pp. 501 et

seq.

128

able to Northern Ireland225. Astonishingly, this is the only case in which that Court has

expressly referred to an instrument of international humanitarian law. This is aston-

ishing because the Court would have had many opportunities for turning to interna-

tional humanitarian law as a source for interpreting rights laid down in the European

Convention on Human Rights. This absence of references to the Geneva Conven-

tions might be ascribed partly to the reluctance of judges to step out of the familiar

ground of the Convention rights and venture into the relatively unfamiliar territory of

international humanitarian law226. When trying to evaluate Court practice, we might,

however, remember that international supervision of domestic courts is restricted to

the rights guaranteed by human rights treaties227.

224 M. Sassòli, “Le Cour européenne des droits de l’homme et les conflits armés”, in S. Breitenmoser, B. Ehren -

zeller, M. Sassòli, W. Stoffel and B. Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law –

Liber amicorum Luzius Wildhaber, Dike, Zurich/St.Gallen, 2007, pp. 709 et seq.

225 …….

226 See C. Droege, op. cit., supra note Error: Reference source not found.

227 Cf. A. Reidy, “The approach of the European Commission and the Court of Human Rights to International

Humanitarian Law”, International Review of the Red Cross, Vol. 80, No. 324 (1998), pp. 513 et seq.

129

Most of the cases before the Court in which humanitarian law was of relev-

ance concerned Chechnya and Turkey and involved attacks on civilians 228. The

Court’s task was mainly to examine possible breaches of the right to life as enshrined

in Article 2 of the European Convention of Human Rights. Remarkably, in most cases

the Court referred to humanitarian law only indirectly. It did, however, use the lan-

guage and logic of humanitarian law. In the case of Özkan v. Turkey229, the Court

found that “at the material time there were serious disturbances in south-east Turkey

involving armed conflict between the security forces and members of the PKK”. The

Court’s view was that “the security forces’ tactical reaction to the initial shots fired at

them from the village on 20 February 1993 cannot be regarded as entailing a dispro-

portionate degree of force”. The Court went on that “no civilians were injured” and

that the reaction was “absolutely necessary for the purpose of protecting life” Such

indirect references to humanitarian law can also be found in the cases of Cyprus v.

Turkey, Güleç v. Turkey, Ergi v. Turkey and Isayeva and others v. Russia230. Further-

more, at one point, the Court stated explicitly that it was not obliged to consider the

applicability of international humanitarian law – Additional Protocol I, for example231.

228 Cf. Cyprus v. Turkey (Appl. No. 670/74 and 6950/75), ECtHR Decision, 26 May 1975, para. 125; Güleç v.

Turkey (Appl. No. 21593/93), ECtHR Judgment, 27 July 1998, para. 63 et seq.; Özkan v. Turkey (Appl. No.

21689/93), ECtHR Judgment, 6 April 2004, para. 297; Isayeva and others v. Russia (Appl. No. 57947/00,

57948, 57949/00), ECtHR Judgment, 24 February 2005, para. 171.

229 Özkan v. Turkey (Appl. No. 21689/93), ECtHR Judgment, 6 April 2004, paras 297 and 305 et seq.

230 See supra note Error: Reference source not found.

231 Markovic and others v. Italy (Appl. No. 1398/03), ECtHR Judgment, 14 December 2006, par. 54 et seq.

130

Altogether, it can be said that the European Court of Human Rights plays a

rather cautious and indirect role in promoting international humanitarian law. This is

regrettable given the Court’s prominent role in the field of human rights. But it must

not be thought inevitable: a regional judiciary mechanism like the Inter-American

Commission on Human Rights has applied rules of humanitarian law directly232.

When human rights courts do not spontaneously draw on international human-

itarian law there are ways of bringing this body of law to their attention. Organisations

such as the ICRC or NGOs concerned about respect for international humanitarian

law might send an “amicus curiae” letter to the court concerned. An amicus curiae is

“a friend of the court”, someone who is not a party to the proceedings but offers as-

sistance because of a strong interest in the subject matter. At the European Court for

Human Rights, for example, an “amicus curiae” letter (third party intervention) might

be received under Art. 36, para. 2: “The President of the Court may, in the interest of

the proper administration of justice, invite any High Contracting Party which is not a

party to the proceedings or any person concerned who is not the applicant to submit

written comments or take part in hearings.”233 This form of intervention is – although

not with reference to international humanitarian law – frequently used by NGOs and

the Court has referd to such submissions in its judgments. 234

232 Cf. Coard and others v. the United States, Inter-American Commission on Human Rights, case no. 10.951,

29 September 1999, para. 39; Albella v. Argentina, Inter-American Commission on Human Rights, case no.

10.951, 29 September 1999, para. 39.

233 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 36, para.

2; The details of the procedure can be found in Rule 44, para. 3 of the rules of the Court.

234 P. J. Sands and R. Mackenzie, „International Courts and Tribunals, Amicus Curiae“, in Max Planck Encyclo-

pedia of Public International Law, online article last updated in 2008, available at: <www.mpepil.com>, ac-

cessed August 2010.

131

One could say that, judging by existing practice, human rights courts and

court-like bodies are of limited use as instruments for enforcing humanitarian law, a

limitation that is inherent in their conception. However, they could be used more prof-

itably to implement humanitarian law. Courts, pleading parties, NGOs and civil soci-

ety at large should take more advantage of human rights complaint procedures by ar-

guing on the basis of international humanitarian law and by exploiting their potential

for “naming and shaming”.

B. Individual criminal responsibility

The role of international criminal law in international relations has been grow-

ing gradually. This is particularly true with regard to war and the protection of human

rights. International judicial mechanisms, established in keeping with this trend, have

become vital to the enforcement and development of humanitarian law. It may well

be that international or internationalized criminal tribunals are now the most spectac-

ular means of protecting humanitarian law235.

235 Cf. T. Meron, “International Criminalization of Internal Atrocities”, American Journal of International Law,

Vol. 89 (1995), pp. 554 et seq.; T. Meron, “Anatomy of an International Criminal Tribunal,” in American

Society of International Law: Proceedings of the Annual Meeting 2006, pp. 279 et seq.; T. McCormack, “The

importance of effective multilateral enforcement of international humanitarian law”, in L. Lijnzaad, J. van

Sambeek and B. Tahzib-Lie (eds), Making the Voice of Humanity Heard, Essays on Humanitarian Assistance

and International Humanitarian Law in Honour of HRH Princess Margriet of the Netherlands , Leiden, Mar-

tinus Nijhoff, 2004, pp. 319 et seq.; R.G. Teitel, Transitional Justice, Oxford, Oxford University Press, 2000,

pp. 27 et seq.; D. Thürer, “Vom Nürnberger Tribunal zum Jugoslawien-Tribunal und weiter zu einem Welt-

strafgerichtshof?”, Schweizerische Zeitschrift für Internationales und Europäisches Recht, 1993, pp. 491 et

seq.; D. Thürer, “Neuere Entwicklungen der internationalen Strafgerichtsbarkeit”, in D. Thürer, Völkerrecht

als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2, Zurich/Baden-Baden, Dike/Nomos, 2009,

132

a) Elements of the idea and its first applications

International criminal law – the branch of international law that deals with inter-

national crimes and the courts and tribunals set up to adjudicate cases in which per-

sons have incurred international criminal responsibility – is much older than interna-

tional or internationalized war crime tribunals. Under the doctrine of universal jurisdic-

tion, international law allows any State to prosecute those who commit the most seri-

ous international crimes. Domestic criminal courts have thus long been entrusted

with the power to prosecute and judge greve breaches of international humanitarian

law. They are responsible for enforcing criminal justice in the first place. However, in

many cases, political leaders have themselves committed, ordered or permitted the

commission of grave violation of international humanitarian law. But, for obvious

reasons, this principle has never really taken. Persons in positions of power are usu-

ally – at least while they are in office – capable of shielding themselves from criminal

prosecution. In addition, in many States, the separation of powers and, especially of

judicial independence are not firmly established in their legal and political systems:

domestic systems of justice are often dominated by the government and/or unwilling

to prosecute those in power or close to it.236 And third-party States have almost no in-

centive to get involved in criminal affairs far removed from their fields of interest. The

case of General Augusto Pinochet, the former military dictator of Chile, was an ex-

ception237. Pinochet was arrested in England and the House of Lords, the highest

pp. 893 et seq. Cf. for a national context e.g. A. R. Ziegler, S. Wehrenberg and R. Weber (eds),

Kriegsverbrecherprozesse in der Schweiz, Zurich/Basle/Geneva, Schulthess, 2009.

236 Y. Beigbeder, International Justice against Impunity: Progress and New Challenges, Leiden, Martinus

Nijhoff, 2005, pp. 13 et seq.

237 D. Thürer, "Modernes Völkerrecht: Ein System im Wandel und Wachstum – Gerechtigkeitsgedanke als

Kraft der Veränderung?", in D. Thürer, Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit –

Band 2, Zurich/Baden-Baden, Dike/Nomos, 2009, pp. 44 et seq.

133

court in the United Kingdom, ruled in favour of Spain’s request for the extradition of

Pinochet, basing its judgment on universal jurisdiction238.

The idea of establishing international tribunals to judge war criminals was

born well before the last years of the twentieth century. As I have already mentioned,

the idea is almost as old as the original Geneva Convention of 1864. However, it was

only after World War I that a truly international criminal tribunal was envisaged, to try

perpetrators of crimes committed during the war years. The Treaty of Versailles

stated that an international tribunal was to be set up to try Kaiser Wilhelm II of Ger-

many. In the event however, the Kaiser was granted asylum in the Netherlands.

Then, after the Second World War, in the London Agreement of 1945, the Allied

powers set up an international tribunal to try those who had committed crimes

against peace, war crimes and crimes against humanity under the Nazi regime. Inter-

national criminal justice must therefore be acknowledged as a major innovation of the

twentieth century: its task is “to achieve justice through reason rather than force; to

uphold the basic principles of human rights and due process; to improve compliance

with the law; and to eliminate impunity, not through vengeance, but through the rule

of law.”239 Three motives for the development of international criminal law and the es-

tablishment of international criminal tribunals may be mentioned:

First, the creation of international courts and tribunals is motivated, inter alia, by

the intention to strengthen international peace and security. The “peace through

238 The judgments of the House of Lords and other British courts that heard Pinochet's case are available at:

<http://www.bailii.org/>, accessed August 2010.

239 T. Meron, “Reflections on the prosecution of war crimes by international tribunals”, American Journal of In-

ternational Law, Vol. 100 (2006), p. 579.

134

law” thesis holds that law and legal institutions are effective means to break the

vicious circle of crime and revenge.

Second, the prosecution of international crimes may be considered to follow lo-

gically from the international protection of human rights, since such crimes are

systematic human rights abuses committed by the leaders of a regime. In this

regard, M. Cherif Bassiouni has written that:

“Without enforcement, these rights are violated with impunity. We owe it to the

victims of these crimes and to our own human and intellectual integrity to reas-

sert the values we believe in by at least attempting to prosecute such offend-

ers.”240

A third motive underlying international criminal law and criminal proceedings is

the desire to secure equal justice for all. As stated earlier, it is doubtful that this

task can be done effectively by domestic/national institutions. Vespasian V.

Pella’s observations are apposite:

“Furthermore, (…) crime, innocence, necessity, even justice have different

names, meanings and colours on the two opposite sides of the barricades. Na-

tional jurisdictions, be they those of the victors or the vanquished, cannot decide

with the necessary detachment where the duty of the accused to their father-

land begins and ends, when this duty is opposed either to the consciences of

the accused themselves or to the dictates of international law.”241

240 M. Cherif Bassiouni, “The time has come for an international criminal court”, Indiana International and

Comparative Law Review, Vol. 1(1994), p. 34.

241 V.V. Pella, “Towards an International Criminal Court”, American Journal of International Law, Vol. 44

(1950), p. 45.

135

One of the essential tasks of international criminal law is to secure international

peace and security. And the most appalling violations of human rights – genocide,

war crimes, and crimes against humanity – threaten international peace and defer or

even make impossible its restoration. That was the view taken by the Security Coun-

cil when it decided in 1993 to establish an international tribunal for the purpose of

prosecuting persons responsible for certain international crimes committed on the

territory of the former Yugoslavia. The Security Council, which has the primary re-

sponsibility for the maintenance of peace, was convinced that “the widespread and

flagrant violation of international humanitarian law (…) continues to constitute a

threat to international peace and security.”242 In international criminal law international

peace is linked to individual accountability.

As has already been mentioned, the first attempt to create an international

criminal tribunal was made after the end of World War I. The idea was to prosecute

Kaiser Wilhelm II for war crimes243. The project failed. The first international criminal

tribunals, created after World War II, were established in Nuremberg and Tokyo:

high-level individuals, not States, were to be judged for crimes of aggression, war

crimes and crimes against humanity; the Nuremberg trials, in particular, greatly influ-

enced the development of international criminal law. The Nuremberg International

Military Tribunal established individual criminal responsibility for these crimes. Indi-

vidual accountability was established on the basis of the idea of personal liability.

This principle – as Chief Prosecutor Robert Jackson at the Nuremberg Tribunal fam-

ously put it244 – “is a necessary as well as a logical one if international law is to render 242 UN Security Council Resolution 827, 25 May 1993. UN Doc. S/Res/827.

243 Cf. A. Cassese, International Criminal Law, 2nd ed., Oxford University Press, New York, 2008.

244 R. Jackson, Chief Prosecutor at the Nuremberg International Military Tribunal, quoted in V.V. Pella, op.cit.,

supra note 239, p. 34.

136

real help to the maintenance of peace.” “Only sanctions”, he continued, “which reach

individuals can peacefully and effectively be enforced.” Jackson stated emphatically

that “crimes always are committed only by persons” and that the “idea that a State

commits crimes is a fiction.”

The Nuremberg Trials were, all in all, highly successful: the first and best

known of them – the Trial of the Major War Criminals before the International Military

Tribunal, which tried 24 of the most important captured leaders of Nazi Germany –

was held from 21 November 1945 to 1 October 1946: the Tribunal rendered the

death sentence 12 times245. The task of the Tribunal was lightened by the fact that

Germany was, at that time, under occupation by Allied troops, which made it easier

to summon witnesses, seize relevant documents and other property and to collect

evidence. However, the Nuremberg Trials were harshly criticized as unfair; it was

said that they violated basic principles of criminal proceedings:

It was doubtful whether, and to what extent, the relevant crimes were recog-

nized in international law at the time they were committed. The general prin-

ciples of nullum crimen, nulla poena sine lege and of non-retroactivity were al-

leged to have been violated;

The Tribunal was criticized as being a political instrument of the victors, since all

the judges were nationals of the Allied States;

As the Allies, too, were guilty of committing grave violations of international hu-

manitarian law on a massive scale (the atomic bombs that were dropped on

Hiroshima and Nagasaki, the extensive fire-bombing of civilians in the town of

245 Of the 12 defendants sentenced to death by hanging, two were not hanged: Hermann Göring committed sui -

cide the night before his execution and Martin Bormann was convicted in absentia. All the others were

hanged. The international criminal tribunals established later were not empowered to pronounce death sen-

tences.

137

Dresden, among others), the Tribunal was reproached for violating the principle

of tu quoque .

However, despite such partly legitimate criticism, the fact remains that the

Nuremburg Trials made a major contribution to the implementation of international

humanitarian law: they established the principle of international individual responsibil -

ity for grave violations of international humanitarian law and set the precedent for its

application246. Having slowly developed to become a legacy, Nuremberg paved the

way and provided a model for ad hoc tribunals that were set up nearly half a century

later: the horrifying atrocities that were committed in the former Yugoslavia and in

Rwanda in the early and mid-nineties led the Security Council to ensure the criminal

accountability of the perpetrators through the creation of ad hoc tribunals.

b) A new era: The tribunals for Rwanda and the former Yugoslavia

In 1993 the International Criminal Tribunal for the Former Yugoslavia (ICTY)

was created by the Security Council, acting under Chapter VII of the UN Charter. The

ICTY was established in May 1993247 in response to acts of ethnic cleansing and

mass executions that were revealed to have taken place during the Balkan conflicts

of the early Nineties. For many decades, heinous crimes and abuses of human rights

had gone unpunished in the Balkans. Long-lasting hatreds and unanswered calls for

justice were allowed to fester, and provided nationalistic leaders with the justification

to undertake wars of purification: the ethnic cleansing that got under way after Tito’s

death. A similar pathology was at work in Rwanda: a centuries-old history of jealousy 246 Y. Beigbeder, op. cit., supra note Error: Reference source not found, p. 4.

247 UN Security Council Resolution 827, Establishment of the International Tribunal for the Prosecution of Per -

sons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the

Former Yugoslavia since 1991, UN Doc. S/RES/827, 25 Mai 1993.

138

and resentment between Hutus and Tutsis that was aggravated by Belgian colonial

policies. The divisions between the two groups had been a source of violence for

much of the twentieth century, and in the middle of 1994 had enabled Hutu leaders to

mobilize enough people to commit genocide against the Tutsi minority248.

As has already been mentioned, serious human rights violations took place

during the armed conflict in the Balkans, and resulted in the creation of the

Yugoslavia Tribunal, an ad hoc tribunal. The Nuremberg Trial was quite clearly a

model for the Yugoslavia Tribunal. However, the ICTY improved on the original in a

number of important respects. We have noted the many shortcomings of the Nurem-

berg Tribunal: it was composed entirely of judges from the victorious countries; it

tried and punished war criminals from only one party to the conflict; in addition, the

accused were said to have been punished for acts that were not criminalized at the

time of their commission. The ICTY tried to forestall such criticisms. However, like its

predecessor, it is an ad-hoc court and impermanent: it was established for the spe-

cific purpose of prosecuting persons responsible for war crimes during the war in the

former Yugoslavia. The Yugoslavia Tribunal has made important contributions to the

development of international criminal law and humanitarian law. For example, it has

refined the principles by which war crimes may be attributed to individual command-

ers at the highest levels of the military and civil command structure. To this end, the

ICTY had to deal with a vitally important question: What degree of authority and

knowledge of the facts are necessary in order for a person to be considered an ac-

complice to war crimes249. Furthermore, it has elucidated such concepts as “persons

248 See R. Goldstone, For Humanity – Reflections of a War Crime Investigator, New Haven/London, Yale Uni-

versity Press, 2000, p. 62.

249 See D. Thürer, "Neuere Entwicklungen der internationalen Strafgerichtsbarkeit", in D. Thürer, Völkerrecht

als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2, Dike/Nomos, Zurich/Baden-Baden, 2009,

139

hors de combat”250, “civilian population” and “civilian”251. In the course of one particu-

lar judgment, the Tribunal described the principles by which it was guided:

“In the course of the trial and in concluding this Judgement, the Trial Chamber had one

core task: to determine whether the Prosecution had proved the guilt of any of the Ac-

cused on any of the charges. The standard of proof—beyond reasonable doubt—

presents a high hurdle for the Prosecution to overcome. The Trial Chamber’s energies

in deliberating upon the evidence have been expanded upon addressing that issue.

Coincidentally, the narrative of this Judgement includes information which may help to

provide a fuller understanding of events in 1998 and 1999 in Kosovo. This Judgement

is, however, simply one element in an array of material from which historians will derive

a complete historical account.”252

pp. 917 et seq.

250 ICTY Appeals Chamber, Prosecutor v. Milan Martic, Judgment, 8 October 2008, IT-95-11-A, paras 303 et

seq.

251 ICTY Appeals Chamber, Prosecutor v. Mile Mrksic and Veselin Sljivancanin, Judgment, 5 May 2009, IT-

95-13/1-A, paras 23 et seq.; ICTY Appeals Chamber, Prosecutor v. Tihomir Blaskic, Judgment, 29 July

2004, IT-95-14-A, paras 105 et seq.

252 ICTY Trial Chamber, Prosecutor v. Milan Milutinovic et al., Judgment, 26 February 2009, IT-05-87-T, para.

4.

140

The Tribunal’s intentions are spelt out very clearly in the forgoing passage:

every case related to Kosovo would be processed systematically and extensively; the

judgment in the matter of Prosecutor v. Milan Milutinovic and others runs to four

volumes totalling more than 1700 pages.

The most important trial conducted by the ICTY – with regard to the develop-

ment of humanitarian law – was the case against Duško Tadič, one of the many per -

sons indicted by the Tribunal for serious violations of humanitarian law on the territ-

ory of the former Yugoslavia. He was the very first person to be indicted and sen-

tenced by the Tribunal. During the civil war in the former Yugoslavia, Tadič was a

member, and afterwards the president, of the local board of the Serbian Democratic

Party in the city of Kozarac. He was convicted of wilful killing, torture or inhuman

treatment, and murder. Tadič participated in the collective forced transfer of civilians

to detention camps. As part of a group of Serbs he beat and kicked one victim uncon-

scious and directly assisted in the group’s plan to inflict severe suffering on another.

He killed two Muslim policemen and participated in the killings of five men in a vil-

lage.

On 26 January 2000, the Appeals Chamber of the ICTY sentenced Tadič to a

total of 20 years in prison. The defendant challenged the jurisdiction of the Court. On

the question whether the statute of the Court referred only to an international armed

conflict, the Tribunal elaborated as follows:

“[The] impetuous development and propagation in the international community of hu-

man rights doctrines, particularly after the adoption of the Universal Declaration of Hu-

man Rights in 1948, has brought about significant changes in international law, notably

in the approach to problems besetting the world community. A State-sovereignty-ori-

141

ented approach has been gradually supplanted by a human-being-oriented approach.

Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is

created for the benefit of human beings) has gained a firm foothold in the international

community as well. It follows that in the area of armed conflict the distinction between

interstate wars and civil wars is losing its value as far as human beings are concerned.

Why protect civilians from belligerent violence, or ban rape, torture or the wanton de-

struction of hospitals, churches, museums or private property, as well as proscribe

weapons causing unnecessary suffering when two sovereign States are engaged in

war, and yet refrain from enacting the same bans or providing the same protection

when armed violence has erupted ‘only’ within the territory of a sovereign State? If in-

ternational law, while of course duly safeguarding the legitimate interests of States,

must gradually turn to the protection of human beings, it is only natural that the afore-

mentioned dichotomy should gradually lose its weight.”253

There are two of the lessons to be learned from the Tadič case: first, in prac -

tice the distinction between international and non-international armed conflict is be-

coming more and more blurred; second, human values are the main agents of

change, not only in the relationship between humanitarian law and human rights law,

but in the system of international law as a whole.

The success of the Yugoslavia Tribunal is telling: of the 161 persons indicted

all but two were seized. The indictment of Slobodan Milošević was certainly a mo-

mentous step. He was the first head of state to be indicted for war crimes. Milošević’s

trial was seen as a crucial test for international law. But even after a four-year trial the

world will never know with legal certainty whether the charge of genocide laid against

him would have been proved, because he died before a verdict could be reached. In

253 ICTY Appeals Chamber, Prosecutor v. Dusko Tadic aka “Dule” - Decision on the Defence Motion for

Interlocutory Appeal on Jurisdiction, Decision, 2 October 1995, IT-94-AR72, para. 97. See A. Cassese, The

Human Dimension of International Law, selected Papers, Oxford, Oxford University Press, 2008, p. XX et

seq.; Cassese, as a member of the Court, had introduced the reference to Roman law into the judgement and

talkes in these pages about his sources of inspiration.

142

2008, Radovan Karadžić was finally apprehended. Two of the accused remain at

large: Ratko Mladić and Goran Hadžić.

143

A year after the creation of the ICTY, the Security Council decided to estab-

lish the International Criminal Tribunal for Rwanda (ICTR) for the purpose of prosec-

uting persons responsible for genocide, crimes against humanity and serious

breaches of international humanitarian law on the territory of Rwanda254. This was in

response to a gruesome genocide in Rwanda that began on the night of 6 April 1994,

and in which, in less than two hundred days, nearly a million Rwandans were

murdered by their fellow citizens255. Its wider purpose was to contribute to the pro-

cess of national reconciliation and to the maintenance of peace in the region. The

ICTR was modelled on the ICTY and like the latter, has contributed to the develop-

ment of international criminal and humanitarian law. For example, when the former

mayor of a district in central Rwanda was sentenced to life imprisonment for the

crime of genocide256, it was the first conviction for genocide handed down by an inter-

national tribunal. The judgment broke new ground in another respect as well: with re-

gard to rape and sexual violence the Chamber decided:

254 UN Security Council Resolution 955, Establishment of an International Tribunal for Rwanda and Adoption

of the Statute of the Tribunal, 8 November 1994, UN Doc. S/RES/955.

255 See R. Goldstone, op. cit., supra note Error: Reference source not found, p. 109.

256 ICTR Trial Chamber, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-94-4-T.

144

“to underscore the fact that in its opinion, they constitute genocide in the same way as

any other act as long as they were committed with the specific intent to destroy, in

whole or in part, a particular group, targeted as such.”257

Another pioneering judgment was the conviction handed down for direct and public

incitement to commit genocide and crimes against humanity through radio broad-

casts:

257 ICTR Trial Chamber, Prosecutor v. Akayesu, Judgment, 2 September 1998ICTR-94-4-T, para. 731.

145

“Those acts were direct and public radio broadcasts all aimed at singling out and at-

tacking the Tutsi ethnic group and Belgians on discriminatory grounds, by depriving

them of the fundamental rights to life, liberty and basic humanity enjoyed by members

of wider society.” The Tribunal decided that the “deprivation of these rights can be said

to have as its aim the death and removal of those persons from the society in which

they live alongside the perpetrators, or eventually even from humanity itself.“258

c) The International Criminal Court

In 1998, on the basis of an international treaty, a permanent international crim-

inal court was created.259 This treaty, the Rome Statute, which was named after the

venue of the diplomatic conference at which it was adopted, entered into force in

2002. It established the independent International Criminal Court, located in The

Hague. So far, 110 States have ratified the Statute260. The task of the Court is to pre-

vent and contain “the most serious crimes of concern to the international community

as a whole”261. Great expectations connected with the establishment of the Court

were expressed in Rome by Kofi Annan, the Secretary-General of the UN, who com-

pared the conference with the one in San Francisco that had led to the foundation of

the United Nations. Annan said in his opening speech of 18 July 1998:

“The establishment of the Court is a gift of hope for future generations, and a giant

step forward in the march towards universal human rights and the rule of law. It is an

achievement which, only a few years ago, nobody would have thought possible.”262

258 ICTR Trial Chamber, Prosecutor v. Ruggiu, Judgment, 1 June 2000, ICTR-97-32-I, para. 22.

259 For a general account on the International Criminal Court see: W.A. Schabas, An Introduction to the Interna-

tional Criminal Court, 3rd ed., Cambridge, Cambridge University Press, 2007; see also W.A. Schabas, The

International Criminal Court: a Commentary on the Rome Statute, Oxford, Oxford University Press, 2010.

260 For updates, see: <www.icc-cpi.int>, accessed August 2010.

261 Rome Statute of the International Criminal Court, Art. 5.

262 Press release of the speech available at: <http://www.un.org/icc/pressrel/lrom23.htm>, accessed August

2010.

146

As with its predecessors, the legal instrument establishing the Court also con-

tains the substantive law that it is to apply. According to its Statute, the International

Criminal Court has jurisdiction over persons for the most serious crimes of interna-

tional concern. As of now, the Statute provides the Court with material jurisdiction

over three core crimes: crimes against humanity, genocide and war crimes263. The

Court may soon also have jurisdiction over the crime of aggression264. However, the

Court’s competence to exercise its jurisdiction is not universal. There are three in-

stances where it can do so.

If the State, on whose territory the crime in question occurred or to which the

person accused of the crime is affiliated by nationality, is a party to the Statute;

if this is the case, either a State Party brings it to the attention of the Court or

the Prosecutor initiates an investigation on the basis of information that he or

she has received.

If a State that is not party to the Rome Statute accepts the jurisdiction of the

Court for a particular crime or situation.

If a situation is referred to the Prosecutor by the Security Council, acting under

Chapter VII of the UN Charter. 263 Rome Statute of the International Criminal Court, Arts 5-8. See also P. Gaeta (ed.), The UN Genocide Con-

vention – A Commentary, Oxford, Oxford University Press, 2009; W.A. Schabas, Genocide in International

Law: The Crime of Crimes, 2nd ed., Cambridge, Cambridge University Press, 2009.

264 The first Review Conference of the Rome Statute held in June 2010 adopted a resolution amending the Stat-

ute so as to include a definition of the crime of aggression and the conditions for the exercise of the Court’s

jurisdiction with respect to the crime. The Conference based the difinition of the cirme of aggression on

United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, and in this context agreed

to qualify as aggression a crime committed by a political or military leader which, by ist character, gravity

and scale constitutes a manifest violation of the Charter. The activation of jurisdiction is subject to a positive

decision to be taken by the Assembly of States Parties not before January 2017. Furthermore, the amend-

ments will enter into force one year after their ratification or acceptance by 30 states parties.

147

The active personality principle is applied without any geographical or tem-

poral limits, other than the principle of nullum crimen sine lege. However, the Court’s

jurisdiction is complementary to domestic criminal jurisdictions.

What is the basic idea of the system of international criminal law that has been

established and what have been the practical consequences? The basic idea has

been summarized by the Prince Zeid, the Jordanian diplomat265 in two phrases con-

tained in the Statute of the International Criminal Court: “This Statute shall apply

equally to all persons without any distinction based on official capacity” and “Immunit-

ies (…) shall not bar the Court from exercising its jurisdiction over such persons.”266

Most of the violations of international humanitarian law are committed by official au-

thorities. Traditionally, under the protection provided by State sovereignty, they en-

joyed immunity and impunity and evaded accountability. International tribunals aim to

make sure that perpetrators are prosecuted. They aim to end impunity and to hold in-

dividuals accountable.

What have been the practical consequences of the newly created permanent

Criminal Court and its procedures of international criminal law? A brief overview of

the Court’s methods shows that the system is still significantly geared to State con-

cerns over sovereignty. Although the Security Council plays a role, in commencing

proceedings and in suspending them, the main responsibility for bringing cases be-

fore the International Criminal Court lies with Member States. In addition, crimes that

are committed on the territory of States that have not ratified the Rome Statute do not

265 Z. Raad, The Grotius Lecture, American Society of International Law, 2008 Meeting (Manuscript).

266 Rome Statute of the International Criminal Court, Art. 27.

148

fall within the jurisdiction of the Court, unless the Security Council or the State in

question decides otherwise or if they are committed by a national of a member

States. This means that with respect to crimes committed on their territory, non-Mem-

ber States can obstruct an international criminal procedure if they are backed by at

least one of the members of the Security Council with the power of veto – no matter

how outrageous the crimes were. Still, significant progress has been made. For ex-

ample, on 15 July 2008, the International Criminal Court took a step of great con-

sequence. The Prosecutor of the Court formally requested an arrest warrant for the

President of Sudan, Omar Hassan al-Bashir: the charges were genocide and crimes

against humanity, committed during the previous five years in the Darfur region of

Sudan. Also, for the first time an international court made it possible for victims to

take part in hearings, not as witnesses but as victims. By granting them the right to

participate, the Court placed victims at the centre of international justice.

Since 2002, the International Criminal Court has had, as a last recourse, “ the

power to exercise its jurisdiction over persons for the most serious crimes of interna-

tional concern.”267 It is a serious deficiency of the Court that its jurisdiction is not uni-

versal. Some of the most powerful States have not ratified the Rome Statute268.

When these States withdrew from the project of establishing an International Criminal

Court, the international community feared that no situation would ever be referred to

the Court by the Security Council. Today, only a handful of cases are pending before

the International Criminal Court. However, in 2005, to the surprise of many, none of

the members of the Security Council with the power to veto exercised that power to

267 Rome Statute of the International Criminal Court, Art. 1.

268 As of 24 March 2010, 111 countries have become party to the Rome Statute of the International Criminal

Court. Among those States that have not yet ratified the Rome Statute are three members of the Security

Council: the United States, China and Russia.

149

prevent the Prosecutor of the Court from taking on the task of investigating the situ-

ation in Darfur. There is reason to hope that over time the Court will obtain wider ac-

ceptance. In any case, a new legal order of accountability is beginning to take shape.

I am sure that it will have a significant educational effect.

d) Hybrid tribunals: Anchoring criminal justice locally

The establishment of the ICTY, and to some extent that of the International

Criminal Court, was based on the belief that a certain detachment from the scene of

the crimes would have a beneficial effect on the process and allow for more impartial-

ity and objectivity. At the same time, it was understood that this may impair accept-

ance of the Court among the peoples in question.

However, it may be useful to hold legal proceedings locally even when the

crimes in question are international in character. The task may then be assigned to a

court that is familiar with local conditions. Hybrid (internationalized) tribunals followed

this rationale. Such tribunals typically combine national and international elements. In

some form or another, they are supported by the international community. In a way,

these tribunals compete with the International Criminal Court, provided that the juris-

diction of the International Criminal Court is given269. The internationalized courts in

Sierra Leone and Cambodia are the most prominent examples.

The Special Court for Sierra Leone is based on an agreement between the

United Nations and the Government of Sierra Leone270. The seat of the Court is Free-

269 Rome Statute of the International Criminal Jurisdiction, entered into force 1 July 2002, Art. 1.

270 Agreement between the United Nations and the Government of Sierra Leone on the establishment of a Spe-

cial Court for Sierra Leone, 16 January 2002.

150

town, the capital of Sierra Leone. Its task is “to prosecute persons who bear the

greatest responsibility for serious violations of international humanitarian law and Si-

erra Leonean law”271 committed during the civil war on the territory of Sierra Leone

since 30 November 1996 (Art. 1). The international element of the Court is assured

through the occupation of key positions by international personnel: the Prosecutor

(Art. 3) and the majority of the judges of the Trial Chamber (two out of three) and of

the Appeals Chamber (three out of five) are appointed by the UN Secretary-General

(Art. 2). The international influence on the Court is considerable. The main trial being

conducted by the Court is that of Charles Taylor, the former president of Liberia.

However, this trial has had to be transferred to The Hague because of security con-

siderations and fears that it might destabilize the region. This has serious disadvant-

ages: lawyers, judges and a great number of victims have had to be brought to the

Netherlands, and it has become more difficult for those interested in it to follow the

trial. The preventive effect of the proceedings seems to have been blunted as a result

of their taking place in a distant country.

271 Ibid., Art. 1.

151

The Special Tribunal for Cambodia is another example of a hybrid or interna-

tionalized tribunal272. Its task is to come to terms with the Khmer Rouge’s reign of ter-

ror in that country. Like the Special Court for Sierra Leone, the Special Tribunal for

Cambodia is based on an agreement between the United Nations and the State on

whose territory the crimes were committed273. The agreement was reached after

tough negotiations and considerable loss of time; by then, many of the perpetrators

and their victims were already well advanced in years. And the crimes were on the

verge of becoming time-barred. The purpose of the Tribunal is to bring “to trial senior

leaders of Democratic Kampuchea and those who were most responsible for the

crimes and serious violations of Cambodian penal law, international humanitarian law

and custom, and international conventions recognized by Cambodia, that were com-

mitted during the period from 17 April 1975 to 6 January 1979” (Art. 1). The agree-

ment was ratified by the Cambodian parliament in October 2004274. In one important

respect the Special Tribunal for Cambodia is unlike the Special Court for Sierra Le-

one: the foreign judges in the Trial Chamber as well as in the Appeals Chamber nom-

inated by the UN Secretary-General are in the minority (Art. 3). They, however, have

272 Other examples of hybrid/mixed tribunals are the Ad-hoc Court for East Timor and the Courts and Special

Tribunals for Lebanon and Kosovo.

273 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution

under Cambodian law of crimes committed during the period of Democratic Kampuchea, 6 June 2003. For a

general account, see C.P.R. Romano, A. Nollkaemper, J.K. Kleffner (eds), Internationalized Criminal Courts

and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia, Oxford, Oxford University Press, 2004;

see also, M. Erlmann, Die Aufarbeitung internationaler Verbrechen und die Rolle der Vereinten Nationen:

der Fall Kambodscha, Saarbrücken, Vdm Verlag, 2007.

274 The Cambodian law on the establishment of the Special Tribunal (Extraordinary Chambers in the Courts of

Cambodia) of 27 October 2004 is available at: <http://www.eccc.gov.kh/english/agreement.list.aspx>, ac-

cessed August 2010.

152

something resembling a power of veto: in both Chambers, the approval of at least

one international judge is needed for a decision (Art. 4). Still, international influence

on the Special Tribunal for Cambodia is considerably less than on the Special Court

for Sierra Leone.

The Special Tribunal for Cambodia, however, gained considerable media at-

tention in February 2009, when, 30 years after the fall of the Khmer Rouge regime,

the first trial against a former Khmer Rouge representative began: Kaing Guek Eav

alias “Duch”, the former head of “S-21” or “Tuol Sleng”, the notorious interrogation,

detention and extermination centre located in Phnom Penh. On the basis of prisoner

lists, the Tribunal fond that a minimum of 12’272 human beings have been detainded

and executed at “S-21” and that the actual number of detainees is likely to have been

considerably greater. In July 2010, Kaing was found guilty of crimes against human-

ity, in particular persecution on political grounds, extermination, imprisonment and

torture as well as numerous grave breaches of the Geneva Conventions of 1949. He

was sentenced to 35 years of imprisonment. Nuon Chea, Ieng Sary, Ieng Thirieth,

and Khieu Sampan were also indicted, as “senior leaders” of the Khmer Rouge re-

gime. They will, one hopes, be sent to trial in 2011.

e) International and internationalized criminal tribunals: An assessment

The history of the international and internationalized criminal courts is mixed:

there have been both successes and fiascos. One may as well begin with instances

of “failure”. Not a single head of state has yet been convicted, despite the fact that in-

ternational criminal justice focuses on those who are mainly responsible for wars and

for the crimes that are invariably committed during wars. Slobodan Milošević died be-

153

fore judgment could be rendered in his case. To be sure, there is an arrest warrant

for Omar Hassan al-Bashir, the President of Sudan, but he has not yet been handed

over to the International Criminal Court. Charles Taylor has been indicted for crimes

against humanity and war crimes by the Special Court for Sierra Leone. But his de-

fence has, so far, successfully managed to cast doubt on most of the charges. We

may, with luck, soon know whether he will be sentenced.275 Having mentioned some

of the failures of the international and internationalized criminal courts, let us examine

the credit side of the ledger. We should note this encouraging development: the prin-

ciple that individuals are and may be held accountable for violations of the law of war

is now more firmly established than ever. States still bear the primary responsibility

for prosecuting and sentencing their own criminals, including those who have com-

mitted international crimes. However, domestic efforts to punish these universal

crimes have been abysmally inadequate. In view of the obstacles inherent in the do-

mestic enforcement of international humanitarian law and international criminal law, it

is obvious that enforcement must be backed by the idea of universal jurisdiction,

which can be exercised by the courts of third countries or by an international criminal

court. And such a court is now available.

Richard Goldstone has pointed out one of the general successes of the United

Nations tribunals: significant advances in humanitarian law and international proced-

ural law – a natural consequence of the law being turned to practical effect. For over

a century, humanitarian law - which used to be called the law of war - has been the

subject of international conferences and of interest to academic lawyers. Prior to

275 About the specific political and procedural difficulties surrounding international criminal justice see R. J.

Goldstone, Bringing War Ciminals to Justice during an Ongoing War, in J. Moore (ed.), Hard Choices –

Moral Dimemma in humanitarian Intervention, Oxford, Rowman and Littlefield Publishers, 1998, pp. 195 et

seq.

154

1993, it was hardly ever used or tested in courts of law. Given these circumstances,

the sophistication and coherence of humanitarian law must be considered a consid-

erable achievement, the credit for which should go – as Goldstone wrote – wholly to

the ICRC276.

On the whole, international criminal courts are promising mechanisms for ad-

dressing the problem of war crimes. The international community now has a perman-

ent body with the jurisdiction to prosecute such crimes: this is unprecedented in inter-

national law. The accountability of States has been complemented by a system of

personal accountability. In modern international law, individuals, too, may be held ac-

countable. Sadly, the fact remains that trials alone cannot put an end to the willing -

ness of human beings to commit barbarous acts. But criminal responsibility might de-

ter abuse of power and contribute to compliance with international humanitarian law

and to the effectiveness of the law. The post-hoc review that is permitted in these

procedures will have a preventive effect. As the Preamble to the Rome Statute says,

the States Parties are “determined to put an end to impunity for the perpetrators of

these crimes and thus to contribute to the prevention of such crimes.”277 Besides its

symbolic value, a permanent international criminal court is undoubtedly something of

a deterrent. The persistent risk of arrest, as a result of changed political circum-

stances or during a journey abroad, certainly influences the calculations of individu-

als.

From a legal point of view, probably the most important contribution made by

international tribunals is to the development of case law. The numerous judgments

276 R. Goldstone, op. cit., supra note Error: Reference source not found, p. 123.

277 Ibid.

155

rendered by these courts and tribunals have consolidated and further developed in-

ternational criminal law in general, and humanitarian law in particular278. Pending

questions that treaty negotiations have failed to solve might be decided by interna-

tional criminal tribunals on the basis of actual cases. The Tribunals for the former

Yugoslavia and Rwanda have generated an impressive body of case law that will be

important to all criminal courts. Based on the groundwork done in Nuremberg, inter-

national law on individual criminal responsibility for serious violations of humanitarian

law and human rights law has been further elaborated in the last twenty years: First

by the two Ad hoc-tribunals created for the prosecution of the atrocities committed in

the former Yugoslavia and in Rwanda and then by another, permanent institution, the

ICC. As a consequence of these new and fascinating developments, government

lawyers have emerged from the back rooms and become folk heroes279.

C. Truth and reconciliation commissions

“Yes, we forgive you – if you will perhaps let

us just tell our story, the story of our forebears

and the pain that has sat for so long in the pit

of our stomachs unacknowledged by you.”

Desmond Tutu280

278 Cf. R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das

ehemalige Jugoslawien und Ruanda: zur Bedeutung von internationalen Gerichtsentscheiden als

Rechtsquelle des Völkerstrafrechts, Berlin, Berliner Wissenschafts-Verlag, 2007.

279 Z. Raad, op. cit., supra note Error: Reference source not found, p. 3.

280 Archbishop Desmond Tutu, para. 65 of the Report of the South African Truth and Reconciliation Commis-

sion. Volume 1, presented to President Nelson Mandela on 29 October 1998.

156

“Those who forget the past are doomed to re-

peat it.”281

The establishment and development of international criminal tribunals may

certainly be considered a milestone in the process of recognizing and strengthening

international individual accountability. The threat of prosecution and punishment can

act as a powerful incentive not to commit atrocities. An ICRC delegate once preven-

ted the commander of an artillery unit from shelling the marketplace in Sarajevo by

warning him that he risked being brought before the Tribunal for the former

Yugoslavia. Latterly, truth and reconciliation commissions have been put forward as

an additional or alternative tool to enhance accountability for serious violations of hu-

man rights and humanitarian law. A report delivered by Kofi Annan, the Secretary-

General of the UN, described truth commissions as “official, temporary, non-judicial

fact-finding bodies that investigate a pattern of abuses of human rights or humanit -

arian law committed over a number of years.”282

Archbishop Desmond Tutu has been perhaps the most persuasive proponent

of truth and reconciliation commissions. He has consistently argued that criminal

justice may be sacrificed for the greater moral cause of enduring social harmony283.

In the report he presented to President Nelson Mandela on 29 October 1998, Arch-

bishop Tutu, who was the Chairperson of the Truth and Reconciliation Commission in

South Africa, gave various reasons why the Nuremberg trials were not a viable model

281 Inscription above the entrance to the museum at the former concentration camp of Dachau (The sign quotes

the American philosopher George Santayana, who wrote this in his book, The Life of Reason.).

282 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict

Societies, 3 August 2004, UN Document-Nr S/2004/616.

283 R.I. Rotberg, “Truth Commissions and the Provision of Truth, Justice, and Reconciliation,” in R.I. Rotberg

and D. Thompson (eds), Truth v. Justice: The Morality of Truth Commissions, Princeton University Press,

Princeton, New Jersey, 2000, p. 9.

157

for tackling the enormous task of dealing with the legacy of apartheid. One of his ar-

guments was that South Africa could not afford the resources in time, money and

personnel that would have had to be invested in such an operation284. Archbishop

Tutu also argued that, because legal proceedings rely on proof beyond reasonable

doubt, the criminal justice system was not the best way to arrive at the truth: perpet-

rators had no incentive to tell the truth and the court often had to decide between the

word of one victim and the evidence of many perpetrators285.

In his introduction to the report prepared by the South African Truth and Re-

conciliation Commission, Archbishop Tutu quoted Judge Marvin Frankel who wrote,

in his book, Out of the Shadows of the Night: The Struggle for International Human

Rights, about the situation in South Africa:

“A nation divided during a repressive regime does not emerge suddenly united, when

the time of repression has passed. The human rights criminals are fellow citizens, and

they may be very powerful and dangerous. If the army and police have been the

agencies of terror, the soldiers and the cops aren’t going to turn overnight into par-

agons of respect for human rights. Their numbers and their expert management of

deadly weapons remain significant facts of life (…). The soldiers and police may be

biding their time, waiting and conspiring to return to power. They may be seeking to

keep or win sympathizers in the population at large. If they are treated too harshly –

or if the net of punishment is cast too widely – there may be a backlash that plays into

their hands. But their victims cannot simply forgive and forget.

These problems are not abstract generalities. They describe tough realities in more

than a dozen countries. If, as we hope, most nations are free from regimes of terror,

similar problems will continue to arise. Since the situations vary the nature of the

problems varies from place to place.”286

284 Report of the South African Truth and Reconciliation Commission. Volume 1, para. 23.

285 Ibid, para. 24.

286 Report of the South African Truth and Reconciliation Commission. Volume 1, para. 25.

158

In the report, Archbishop Tutu also provided a philosophical justification for the

institution of truth and reconciliation commissions, which, in South Africa, were cre-

ated on the basis of amnesty: “We have been concerned, too, that many consider

only one aspect of justice,” he wrote. “Certainly, amnesty cannot be viewed as justice

if we think of justice only as retributive and punitive in nature. We believe, however,

that there is another kind of justice – a restorative justice which is concerned not so

much with punishment as with correcting imbalances, restoring broken relationships

– with healing, harmony and reconciliation. Such justice focuses on the experience of

victims; hence the importance of reparation.”287

Archbishop Tutu’s arguments apply also to many contemporary armed con-

flicts, especially those of a non-international character and longlasting occupational

regimes.

Several other reasons may be given to explain the need for truth and reconcili -

ation commissions. It has been said that (a) the trial as a response to injustice has its

own internal limitations and that litigation is not the ideal means of rendering social

justice; (b) procedural rules and rulings set limits on the evidence that can be in-

cluded in trials; (c) the comparatively uncomplicated issues of guilt and innocence

that are addressed during criminal trials can never help to reveal or establish the

many sources of mass violence; (d) trials focus on perpetrators not victims; and (e)

judges and juries listen sceptically to victims because of their obligation regarding the

presumption of innocence288.

287 Ibid., para. 36.

288 See M. Minow, “The Hope for Healing: What can Truth Commissions Do?”, in R.I. Rotberg and D.

Thompson (eds), Truth v. Justice: The Morality of Truth Commissions, Princeton/New Jersey, Princeton Uni-

versity Press, 2000, pp. 237 et seq.

159

It has also been said that truth and reconciliation commissions embody an

idea of justice that is centred on survivors or victims and is not retributive. In this

sense, Martha Minow concluded that “the most distinctive element of a truth commis-

sion, in comparison with prosecution, (is) the focus on victims, including forgotten vic-

tims in forgotten places.”289

This victim-centred vision of justice - which enables victims to recall painful

memories in exhaustive detail and which is committed to the idea of allowing victims

to tell their stories – is not likely to be realized by trials. Trials seldom allow for the

narrative latitude that is such a feature of truth commissions and the rules of due pro-

cess (e.g. aggressive cross-examination during witness testimony in the adversarial

legal system) do not permit victims to be treated with the deference and respect that

they are accorded by truth commissions while giving testimony290.

Truth and reconciliation commissions put the victims of atrocities and their re-

spective interests centre stage; the question of how these interests can best be met

has set off a controversial debate about reconciling the ideas of ‘justice’ and ‘truth.’

Strict advocates of standards for countering impunity argue that legal processes have

no rival in establishing guilt and innocence or publicizing the truth of criminality, and

are the best inoculation against the recurrence of repression. The amnesties granted

by some of the truth commissions have led to the criticism that truth commissions

and related mechanisms permit criminals to escape unpunished. However, the most

289 M. Minow, Between Vengeance and Forgiveness – Facing History after Genocide and Mass Violence, Bo-ston, Bacon Press, 1998, p. 60.

290 E. Kiss, “Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice”, in

R.I. Rotberg and D. Thompson (eds), Truth v. Justice: The Morality of Truth Commissions, Princeton/New

Jersey, Princeton University Press, 2000, p. 70.

160

prominent of these commissions - the South African Truth and Reconciliation Com-

mission – shows most clearly that the “either/or,” “truth vs. justice,” argument is un-

founded. The primary goal of the amnesty process was to establish the truth, particu-

larly regarding the motives of the perpetrators. Second, the process aimed to deter

future violence, by establishing how and why the crimes had occurred and by

presenting a clear picture of who had engaged in political violence, as opposed to

common crimes. Furthermore, the amnesty process hoped to establish the account-

ability of perpetrators for the crimes they had committed, even though they would suf-

fer no formal punishment. It is demonstrably true that truth commissions - although

they grant amnesties - have a place in the struggle to promote humanitarian norms

by exposing violations of the law and bringing into public view at least some of the

perpetrators of crimes. However, the existence of truth commissions does not obviate

the need for domestic prosecution of those who commit violations of humanitarian

law; and it does not lessen the importance of international mechanisms for prosecut-

ing the architects of such atrocities291.

One may say in summary that while truth and reconciliation commissions may

contribute to the establishment of responsibility and to the implementation of legal

and other sanctions, the trial model may be more suitable for holding accountable in-

dividual political leaders and the architects of atrocities292. The international com-

munity faces an enormous challenge: balancing the obligation to prosecute certain

crimes against the need to secure a peaceful and full transition to democracy by for-

291 R.I. Rotberg, op. cit., supra note Error: Reference source not found, pp. 3 et seq.

292 D.A. Crocker, “Truth Commissions, Transitional Justice, and Civil Society”, in R.I. Rotberg and D.

Thompson (eds), Truth v. Justice: The Morality of Truth Commissions, Princeton/New Jersey, Princeton Uni-

versity Press, 2000, pp. 103 et seq.

161

going punishment293. International criminal tribunals are a powerful, international re-

sponse to the commission of grave, systematic human rights abuses. Martha Minow

stated:

“The chance to tell one’s story and be heard without interruption or scepticism is cru-

cial to so many people, and nowhere more vital than for survivors of trauma. So, too,

is the commitment to produce a coherent, if complex narrative about the entire na-

tion’s trauma, and the multiple sources and expressions of its violence. If the goals

are to gain public acknowledgement for the harms and accounts, as full as possible,

of what happened, the trial process is at best an imperfect means.”294

Truth and reconciliation commissions appear to be the better choice in certain situ-

ations. As Justice Sandra Day O’Connor has observed, the balance between venge-

fulness and forgiveness is in many ways the balance between too much forgetting

and too much remembering295.

There is dispute over whether the decisions of national or international war

crime tribunals or truth and reconciliation commissions should be influenced by polit -

ical considerations. For instance, sometimes investigations or prosecutions are set

aside because of fears that they will have an adverse impact on national reconcili -

ation296. Accountability, however, must be recognized as an indispensable compon-

ent of peace and reconciliation. To forfeit justice or truth in the name of national re-

conciliation must be considered unacceptable, because consenting to impunity for in-

293 Foreword by Sandra Day O’Connor to R. Goldstone, op. cit., supra note Error: Reference source not found,

p. xii.

294 M. Minow, op. cit., supra, note 289, p. 58.

295 Ibid., p. xiv.

296 See, for example, the Special Tribunal for Cambodia’s Pre-Trial Chamber’s decision of 18 August 2009 on

the dispute between the Co-Prosecutors of the ECCC over whether to proceed with the investigation of addi-

tional suspects. Available at: <www.eccc.gov.kh>, accessed August 2010.

162

ternational crimes and for systematic and widespread violations of fundamental hu-

man rights is a betrayal of our solidarity with the victims, to whom we owe justice, re-

membrance, and compensation. To remember and to bring perpetrators to justice is

our duty; we owe it to our own humanity and to the prevention of future victimiza-

tion297.

IV. Genius mundi : Globalization and law

Let us remind ourselves of what we have learnt so far. It has become obvious

that in the international legal system today, civil societies and, most importantly, indi-

viduals and groups occupy a prominent place. This was not so for centuries, when

States exclusively shaped and dominated the international system. But battles like

Solferino, commanded by monarchs and generals, have become very rare these

days: situations involving the use of force are more and more dominated by non-

State actors and anarchical forces. Similarly, grand occasions like the Congress of

Vienna - where ministers, diplomats and titled personages gathered - have given way

to less orderly affairs, with NGOs and interest groups playing a prominent role. Hu-

man values have gradually become the “music of the age.” They have found legal ex-

pression in a complex and increasingly elaborate system of human rights and in the

older corpus of humanitarian law.

All modern international lawyers are familiar with the basic structure of human

rights and quite a few specialize in some area of human rights law298. Human rights,

297 Cf. M. Cherif Bassiouni, “The need for international accountability”, in M. Cherif Bassiouni (ed.), Interna-

tional Criminal Law: Enforcement – Vol. 3, New York, Transnational Publishers, 1999, p. 25.

298 E. Riedel, “The Human Right to Health: Conceptual Foundations”, in A. Clapham and M. Robinson (eds),

Realizing the Right to Health, Zurich, Rüffer and Rub, 2009, pp. 21 et seq.

163

as we all know, began as entitlements granted to individuals against abuse of State

power. They also appealed to individuals as citizens’ rights. Today, they encompass

a wide range of social, economic and cultural rights. Human rights as they are now

listed in catalogues of international law are historically and dogmatically rooted in the

constitutions and the constitutional traditions of western countries: the British Bill of

Rights, the French Déclaration des droits de l’homme et du citoyen, the American

Declaration of Independence, the Constitution of the United States, and so on. In

various ways, the institutions, doctrines and modes of thought that evolved in do-

mestic legal systems were absorbed by the international, inter-State legal order.

Modern human rights, which are the rights of the individual, demand respect and ful-

filment; and, increasingly, a protective element is ascribed even to classic liberal (ori -

ginally, “negative”) rights in jurisprudence and practice299.

Some international lawyers or students of international law have – at least as

readers of these pages – also gained some knowledge of international humanitarian

law. How do the two fields of law, human rights law and humanitarian law, relate to

each other? We have tried to analyse the relationship from a rather dogmatic point of

view. We reached the conclusion that as far as substance and procedures are con-

cerned, war victims had gradually come to be recognized, directly300 or indirectly, as 299 For example, the European Court of Human Rights ruled - in the case of Nachova and others v. Bulgaria,

Judgment, 26 February 2004 and 6 July 2005 (Grand Chamber) (No. 43577/98) - that under Article 2 of the

European Convention on Human Rights (Right to Life), States are also obliged to investigate the deprivation

of life effectively. Failure by the authorities to do so – as the ECtHR found in this case – was a matter of

grave concern, as it cast serious doubt on the objectivity and impartiality of the investigators and prosecutors

involved and, consequently, constitutes a violation of Article 2 of the Convention. This duty, thus, contains a

protective element as described above.

300 See Articles 6 and 7 respectively of Geneva Conventions I-III and Articles 7 and 8 respectively of Geneva

Convention IV, supra note Error: Reference source not found.

164

subjects of the international legal order. However, international humanitarian law

was, and is still, based on obligations imposed on States and non-State actors. Let

us refer to the rules on belligerent occupation mentioned earlier in this chapter, in or-

der to shed some light on this subject. The International Court of Justice, ruling in a

case about armed activities in the Democratic Republic of the Congo (Democratic

Republic of the Congo v. Uganda), made reference to these rules:

“178. The Court thus concludes that Uganda was the occupying Power in Ituri at the

relevant time. As such, it was under a obligation, according to Article 43 of the Hague

Regulations of 1907, to take all the measures in its power to restore, and ensure, as

far as possible, public order and safety in the occupied area, while respecting, unless

absolutely prevented, the laws in force in the DRC. This obligation comprised the duty

to secure respect for the applicable rules of international human rights law, to respect

the inhabitants of the occupied territory against acts of violence by any third party.

179. The Court, having concluded that Uganda was an occupying Power in Ituri at the

relevant time, finds that Uganda’s responsibility is engaged both for any acts of its

military that violated its international obligations and for any acts of vigilance in pre-

venting violation of human rights and international humanitarian law by other actors

present in the occupied territory, including rebel groups acting on their own account.

180. The Court notes that Uganda at all times has responsibility for all actions and

omissions of its own military forces in the territory of the DRC in breach of its obliga-

tions under the rules of international human rights law and international humanitarian

law which are relevant and applicable in the specific situation.” 301

I would like to conclude this chapter with two reflections of a more general

nature. Knowing that we live in a state of transition, we try to look beyond the status

quo of legal development and ask ourselves about the potential of human rights law

and of humanitarian law. We then discover two seeming paradoxes: first, that though

humanitarian law is older than human rights law it is more future-oriented; and

second, that though it is, as laid down in black-letter law, a characteristic product of

301 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.

Uganda), Judgment of 19 December 2005, ICJ Reports 2005.

165

the Age of Enlightenment in Europe, its potential for global relevance seems to be

greater than that of human rights law.

Humanitarian law is typically modern in the sense that, as is generally the

case with international law, its focus is shifting from rights to responsibilities. In this

context, think, for instance, of the concepts of ‘human security’ and ‘the responsibility

to protect,’ as presented by the International Commission on Intervention and State

Sovereignty302. Similarly, breaches of humanitarian law give rise to criminal respons-

ibility for individuals who commit or facilitate war crimes or similar atrocities. As An-

drew Clapham has written, “Government and rebel leaders are now well aware that

they can be accused of war crimes for failing to respect Common Article 3 to the

Geneva Conventions of 1949 in a non-international armed conflict. But the list of

crimes goes beyond this context and is complex and far-reaching.” And he continues

that a reorientation is taking place in the international legal system: it is moving “from

rights to responsibility.” To remain fixated on rights rather than responsibilities,”

Clapham writes, “is to miss the chance to ensure greater accountability for human

rights abuses and perhaps increase human security.”303 (p. 63)

Considering the spirit of the legal regimes on which the principle of humanity

which underlies international humanitarian law seems to be richer and less rigid than

the architecture of human rights law. It embraces, besides the classic set of human

302 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, IDRC

Books, Ottawa, 2001.

303 A. Clapham, “Rights and Responsibilities: A Legal Perspective”, O. Jütersonke and K. Krause (eds), From

Rights to Responsibilities – Rethinking Interventions for Humanitrian Purposes, Programme for Strategic and

International Security Studies 7, Geneva, Academy of International Humanitarian Law and Human Rights,

2006, pp. 61-85, 63.

166

rights (including the State’s duties to protect individuals), the idea of public obliga-

tions and mutual responsibility. It is, as an expression of an entire legal culture, more

flexible and provides bridges to other modes of thought, beyond the Western world304.

In this sense, it is not old and dated, but modern and future-oriented. It leaves room

for alternative modes of negotiation, dispute settlement and sanction.

It is important to remember that the idea, the idée grande, underlying human

rights is much older and broader than modern human rights thinkers and practitioners

often believe. The idea of humanity, described in Chapter One, was, in a way, a fore-

runner for the development of modern human rights. The original Geneva Convention

of 1864, developed from the shock of Solferino, was a turning point in legal history:

for the first time human values as such had been incorporated in an international

treaty. However, we should not overlook the fact that human rights, as they exist and

as they are being formulated today, are the product of Western systems of thought.

But we should also not forget that more than 80 percent of the world’s population live

in non-Western countries, that the habits and values of old cultures and civilizations

persist all over the world and that law and legal cultures are in a process of constant

flux. What seems to be important, as Onuma Yasuaki acutely observes305, is that

after a period of State and inter-State normative development we are entering a

phase of globalization that will be characterized by transnational movements and

transcultural customs, ideas and beliefs. Less rigid and more flexible, the traditions of

304 See A.H.Y. Chen, “The Rise of Rights: Some Comparative Civilizational Reflections”, Journal of Chinese

Philosophers, Vol. 15 (1988), pp. 5 et seq.; O. Yasuaki, "A transcivilizational perspective on the global legal

order in the twenty-first century: A way to overcome West-centric and judiciary-centric deficits in internatio-

nal legal thought," in R.St.J. Macdonald and D.M. Johnston (eds), Towards World Constitutionalism: Issues

in the Legal Ordering of the World Community, Leiden/Boston, Martinus Nijhoff, 2005, pp. 151 et seq.

305 O. Yasuaki, op. cit., supra note Error: Reference source not found, pp. 159 et seq. and 169 et seq.

167

humanitarian thought seem to be more adaptable to the circumstances of a globaliz-

ing world than established human rights, with their State-centred variations and their

court-monitored methods of application, implementation and development. This is so

although human rights gradually move from emphasizing individualistic rights to-

wards social and collective rights and from bastions of individual liberty towards pro-

tective conceptions of the role of the State. The principle of humanity, with its em-

phasis on obligations and responsibilities, seems to be an excellent starting place for

developing globalized visions of a pluralistic and more tolerant world. Religion played

an important role in earlier times: it does so still, in our transnational age. We will ex-

amine that world, of religious and other belief systems, in the next chapter.

168

CHAPTER FOUR

RELIGION AND INTERNATIONAL HUMANITARIAN LAW – SUPPORT

AND TENSION

“’’Knowledge,’ claims Siddhartha, ‘can be commu-

nicated, but not wisdom’.”

- Hermann Hesse306

306 H. Hesse, Siddhartha (translated by H. Rossner, with a preface by Donald McCrory), London, Picador,

1998, p.49.

169

I. A difficult relationship

Human beings have been practising religion from time immemorial. Religious

consciousness, the belief in the existence of an external and objective divine pur-

pose, seems to be both an aspect of human nature and a justification for it. The un-

ceasing emergence of religious communities all over the world has been one of the

constant features of human history.

In the Age of Enlightenment, most thinkers believed, and indeed hoped, that

religion would blow away and be replaced by reason. They completely misunder-

stood the nature of religious belief. Far from disappearing, religion, to the surprise of

many, has made a powerful public comeback: as a source of inspiration for creating

and sustaining peaceful and purposeful lives for human beings and communities, but

also as a disruptive force engendering fanaticism, intolerance, and violence307.

This comeback is a consequence of the nature of religious belief: religion is

not an epiphenomenon of society but its background. Religion formed culture – and

culture is the basis of civilization. The principle of humanity and the idea of human

rights grew out of religious doctrines. Every religion can furnish examples of this be-

nign aspect of religious belief.

But religion has its dark aspects as well: precepts and beliefs that encourage

the suppression of and cruelty towards adherents of other religions. There is a well-

307 Cf. H. Küng, Wozu Weltethos? Religion und Ethik in Zeiten der Globalisierung, Freiburg im Breisgau,

Herder, 2002; See also H.-M. Schönherr-Mann, Miteinander leben lernen: die Philosophie und der Kampf

der Kulturen, Munich, Piper, 2008; U. Beck, Der eigene Gott – Von der Friedensfähigkeit und dem

Gewaltpotential der Religionen, Frankfurt am Main/Leipzig, 2008, pp. 68 et seq.

170

known saying to this effect: “The more heavenly the ends, the more devilish the

means.” No religion is immune to this temptation.

It would be false to blame wars, wanton cruelty towards human beings and

crimes against humanity only on religion. Religious doctrines have often been only a

pretext for violating human rights; the actual reasons were quite other: glory, the

struggle for power or economic resources, racism, xenophobia, and so on.

An extracurricular approach such as that presented in this chapter might be in-

structive, although religion is ambivalent on the subjects of war and peace. There are

three reasons for considering religious beliefs:

First, there are pragmatic reasons for examining religions. They are part of the

cultural heritage of mankind. The same holds true for philosophical systems or

Weltanschauungen (that is, systems of thought that underlie our view of the world).

Indeed such systems often address, among many other issues, questions similar to

those with which international law is concerned. In one of his Hague lectures, Philip

Jessup suggested that one could turn to an expert in international or transnational

law as one would, ordinarily, turn to a knowledgeable pharmacist308. As a con-

sequence, to turn to religion – as well as to other fields of knowledge – is to use it as

an inspirational source for the law, as a guide that might promote the understanding

and interpretation of the law in force and as a means that might shape or develop it.

The second reason is linked to the aspirations of international law. Its very

nature requires international law to base itself on a system of universal values. Nev-

308 P.C. Jessup, "To Form a More Perfect United Nations," Recueil des Cours, Vol. 129 (1970), pp. 1 and 6.

171

ertheless, despite all the solemn assurances to the contrary, the principles and rules

of the international legal order are overwhelmingly the product of the West. This is no

less true of the codification of international humanitarian law. The West regards itself

as a club of “civilized nations.” But the darkness of Western history makes this a diffi -

cult claim to sustain, makes it difficult to assert with any conviction that the West has

achieved an exceptionally high level of civilization.309 Therefore, Eastern values have

to be given their place in the system of international humanitarian law if this body of

law is to be truly universal.

The third reason for being interested in the religious contexts of humanitarian

law is this: it can be easily shown that law as such is powerless if it is not backed by

forces beyond the legal system, such as customs, public opinion or – religion.

Durkheim characterized emotional experience as the element that differentiates reli-

gious systems from systems of rational ideas. Religious experience encourages the

believer to confront the daily challenges of life. This feeling of encouragement and

support is often stronger than any rational consideration: in obedience to their reli-

309 Western countries made technological discoveries later than countries in the East, but unlike the latter, the

West used this technology as a means of expansion, building up colonial empires based on racism, exploita-

tion and oppression. The two World Wars, which culminated in atomic bombs being dropped on Nagasaki

and Hiroshima, were manifestations of a collective pathology. The Western world has, of course, made valu -

able contributions to world culture: creativity and compassion, as well as an emphasis on the individual’s

worth, are important aspects of the culture of the West. But Western civilization can no longer be held up as

a shining model to the rest of the world, and certainly not as the only one.

For this reason I think it will be rewarding to broaden our perspective and to catch a glimpse of some of the

world’s most important religions or philosophical systems. On the one hand, this will help us find out if, and

in what way, they might serve as a source of experience and wisdom for the entire world. It might also reveal

if, and in what way, such beliefs may be obstacles to achieving peaceful co-existence among peoples and cul -

tures, and between human beings and the natural environment.

172

gious convictions, believers may be prepared even to sacrifice their lives. Legal re-

gimes are especially fragile in times of war. Throughout history, religion has been an

extremely powerful force: acting with or against the law, supporting or endangering

it310. It may be rewarding to look for elements in religious traditions that are in accord-

ance with the principles of humanitarian law.

II. World religions and world views

It may be appropriate to briefly reflect on six of the world’s major religions:

Confucianism, Hinduism, Buddhism, Christianity and Judaism, and Islam. We shall

consider them in the light of the contributions they have made to the system and con-

cepts of modern international humanitarian law.

A. Confucianism

For two-and-a-half thousand years Confucianism, together with Taoism, dom-

inated cultural life in China. But by 1911, when the Qing dynasty was overthrown and

Sun Yat-sen established the Republic of China, the challenge to Confucian traditions

had grown steadily. Then, in 1949, Mao Zedong established a communist State, the

People’s Republic of China. The new regime vigorously sought to eradicate long-es-

tablished values, and did so with a certain ferocity during the dark years of the Cul-

tural Revolution (1966-1976). In recent years, the so-called “Fourth Generation” of

leaders of the Chinese Communist Party has increasingly appealed to communal val-

310 See D. Thürer and K. Furer, "La religion contre le principe fondamental d’humanité? L’interprétation de

textes religieux d’après les principes du droit international,", in Liber Amicorum Anne Petitpierre-Sauvain,

Economie Environnement Ethique: De la responsabilité sociale et sociétale, Geneva, Schulthess, 2009.

173

ues that are closely modelled on Confucian ideals. Some scholars even think that

today Chinese thought is largely marked by Confucianism311.

Although Confucianism does not venerate divinities, it may be said to conform

to Durkheim’s definition312 of religion. Ancestor worship is the ritual centre of Con-

fucianism. Confucius (551 BC - 479 BC) had no revelatory religious experiences, or

Urerfahrung and was not a mystic. He was a political figure - on occasion a minister

in governments and at other times, a counsellor to them - and a teacher: he taught

people how to lead good, orderly and responsible lives. His interests lay in public life

and he insisted on the importance of engagement in public affairs.313 Confucius also

taught that archery was one of the means by which people can develop their charac-

ters in a spirit of moderation was. The main scriptural text of Confucianism is the

Analects. A collection of sayings, stories and anecdotes of Confucius, it was written

down, or assembled, by his students. The word itself means “conversation.” It is very

difficult to extract a coherent system of belief, or of thought, from the Analects. One

passage treats the question of an army of common people, a militia:

311 H. Feng, “Confucianism provides the most essential elements in Chinese military thought and Chinese con-

duct of international relations.” H. Feng, Chinese Strategic Culture and Foreign Policy Decision-making,

Confucianism, Leadership and War, New York, Routledge, 2007.

312 E. Durkheim, Les formes élémentaires de la vie religieuse, Le système totémique en Australie, Paris Presses

Universitaires de France, 1960, p. 65. Confucius was not the founder of a religion in a traditional sense but

neither was he merely the author of a rationalist philosophy. His teachings were practical, but pervaded by a

humanistic spirit. He was passionately drawn to order, truth and reason. His teachings might therefore also be

considered as a “Weltanschauung” (“world view”) rather then as a “religion”.

313 Confucius did not seem to distinguish between custom, morals and law. But he seems to have made a dis-

tinction between law, which he regarded as a set of rules for orderly conduct, and other higher values of in -

spiration.

174

“The Master said, Let a good man instruct them for seven years, and the

common people will be capable of military service. The Master said, To

fail to instruct the common people in warfare - you could call that throwing

them away.“314

Confucius hunted; he did not spare animals. The Analects say that he did so in

a spirit of moderation:

“The Master fished with a pole, and did not use a net; when he hunted, he

did not shoot roosting birds.”315

His interest in warfare316 and his attitude towards animal lead to two remarks.

First, Confucius puts forward the idea that people must be taught how to do battle; he

stresses the importance of instructing warriors. And he believes that animals, not be-

ing the equals of human beings, need not be spared. However, when it comes to hu-

man beings, as in other religions, the “Golden Rule” (“What you don’t want to suffer,

do not inflict on others”317) is known and contained in the Analects318.

Confucius lived before the so-called ”Warring States period” during which

practical and successful theories of state management and of warfare were pressing

needs for princes. Confucius was not the only one to develop something resembling

314 Confucius, The Analects of Confucius (translated by B. Watson), New York, Columbia University Press,

2007, p. 93, (13:29 – 30).

315 The translation given by Burton Watson differs slightly: “The Master fished with a rod but not with a

longline. He shot at birds with a stringed arrow, but not if they were roosting.” Ibid., (7:26), p. 51.

316 He says also that having “enough weaponry” is an important element of government. Ibid., (12:7).

317 K. Jaspers, Die massgebenden Menschen, Sokrates, Buddha, Konfuzius, Jesus, 12th ed., Munich, Piper

Verlag GmbH, 2007, p. 85.

318 Confucius, op. cit., supra note Error: Reference source not found, (12.2), p. 80: “Zhonggong asked about hu-

maneness. The Master said, When you go out the door, behave as though you were going to meet an import -

ant guest. When you employ the common people, do so as though you were conducting an important sacri-

fice. What you do not want others to do to you, do not do to others.”

175

a theory of governance. But his philosophy was the most successful of all and its ef-

fects on Chinese thinking are discernible even today. He had a great veneration for

the Duke of Chou whom he believed to be the ideal ruler. According to Confucius, it

was only by setting a perfect personal example himself that a sovereign could legit-

imately rule over his State. A just sovereign had a so-called “Mandate of Heaven.”

But this mandate could be forfeited by immoral behaviour and, therefore, revolting

against an unjust ruler was a just means for re-establishing a harmonious reign.

It is the philosopher Karl Jaspers’ view that:

“Central in the world view of Confucius is man’s (a human being’s) nature which he

called Yen. Yen is humanity and morality at the same time. To act according to Yen

does not mean to act in accordance with a specific law, but in accordance with what

gives value to all specific laws and, at the same time, strips them of any claims to ab-

solute value. For Confucius, Yen lies in what he calls measure and middle or

centre.”319

Confucius’ theories were developed and propagated by his followers. The

most important of them is Mencius (371 – 289 B.C.) His book, the Mengzi, (The

Works of Mencius) is one of the canonical texts of the Confucian tradition. Mencius

saw nothing good in war, but he believed that war might be necessary to liberate an

oppressed nation. And he regarded the right to self-defence as consistent with the

duty to treat other people with love. To Mencius, the people were more important

than the State.

However, Confucius’ ideas did not go unopposed during his lifetime. His teachings

were criticized by Lao-tse, the founder of Taoism. Both Confucianism and Taoism

319 K. Jaspers, op. cit., supra note Error: Reference source not found, p.74.

176

rely on belief in the existence of the Tao.320 While the word “Tao” itself translates as

“way”, “path”, or “route”, or sometimes more loosely as “doctrine” or “principle”, it is

often used philosophically to signify the fundamental or true nature of the world. The

aim of both schools is the same: realizing harmony in the world. But they differ in the

way this harmony should be attained: While Taoism underlines the principle of wu-

wei (non-intervention, not forcing things to happen), Confucianism emphasizes the

importance of virtuous conduct. Lao-tse vigorously defended his theory of gov-

ernance by his critics of Confucius’. His book, the Tao Te King, presents Lao-tse’s

teachings in the form of poetry.

Stanza 31 of the Tao Te King treats the subject of war and weapons.

Weapons are nothing good and not a ruler’s first choice. War is nothing to be proud

of, the stanza goes, but gives reason to prepare for funerals 321. 320 K. Jaspers, op. cit., supra note 290, p. 86 f. notes: “According to the Tao school of thought, only he who

overcomes his self and respects the limits imposed by “II”, the laws of custom, will become human. Even

though, for instance, justice is the most important value, the noble man nevertheless lets the “II” guide him

when exercising justice. The “II” and the substance (originality) ought to be balanced. Lao-tse criticized Con-

fucius with the following words: “Let your (i.e. man’s) inner force guide your steps. Reach the point where

you no longer need to labour to praise philanthropy and justice (…) All this talk about philanthropy and

justice, these constant pinpricks, they irritate. The swan does not need to bathe every day in order to stay

white.”

And Lao-tse wrote: “If the source of Tao runs dry, then mankind will rely in vain on makeshift philanthropy

and justice. They are like fish: If the well dries up and the water level of the pond is dropping, only then will

they interrelate, they splash water on each other to keep wet, they squeeze together to get some splashes of

water. But they would do better to forget each other in rivers and lakes. Therefore it is right for humans to

simply live in the Tao, without factitiousness or force, without knowing or thinking about good and bad.”

321 Laozi, Dao De Jing: The Book of the Way (translated, with a commentary by M. Roberts), Los Angeles,

University of California Press, 2001, p. 93: “Weapons of war are omens of doom, To be loathed by every liv-

ing thing And shunned by those who keep the Way. Presiding at court the leader honours the left. Resorting

177

In Stanza 69, the principle of compassion is mentioned in verse 10:

“Once battle is joined, who gives way wins.”322

The The Art of War by Sun Tzu was written during the “Warring States period.”

It is the “earliest extant strategic book in human history”323. The author united Con-

fucian thinking, Taoist principles and strategic know-how. To him, the best way to

wage war is “not battling”, but win without fighting: “Neutralizing an adversary’s forces

without battle is absolute perfection.”324 One should go to war only if there are ex-

tremely persuasive arguments to do so325. If a commander, or a warrior, knows his

army’s or his own personal resources and weaknesses, the battleground and, espe-

cially, his adversary’s weaknesses and strengths, it is not difficult to choose an ad-

equate strategy for winning a war.

to war he honours the right. But weapons are never the leader’s choice. Weapons of war are omens of doom,

Not to be used unless compelled. Above all, with mind and heart unstirred, To arms give no glory: For to

glory in arms Is to sing and rejoice in the slaughter of men. And singers in praise of the slaughter of men

Shall not in this world gain their ends. Thus the left is for deeds that are blessed, The right is for deeds that

bring death. To the left the minor commander. To the right the chief general: Placed for the rites to honour

the dead. When the slaughter is great, Let the leader come forth to keen for the slain; The victory won, To

perform solemn rites in mourning the day.”

322 Ibid., p. 169. The connection with compassion is more evident if the translation is “soldiers who sorrow pre-

vail.” There are indeed different versions of the original text. See Roberts’ comment on stanza 69, p. 169.

323 Sun Tzu, The Art of War (translated by J.H. Huang), New York, Quill William Morrow, 1993, p. 15.

324 Ibid., Chapter 3, point c. 2, p. 49.

325 Ibid., Chapter 3, conclusion, p. 49: “So, those sophisticated at using forces neutralize an adversary’s military

power, but not through battles; occupy an adversary’s cities, but not through siege; and destroy an ad-

versary’s country, but not through protraction.”

178

It is important to note that “not battling” is a strategic tactic, not a basic prin-

ciple of warfare. There is no mention of defensive warfare anywhere in the book.

Besides the principle of humanity, deduced from the idea of “ren” (“human”),

none of the essential principles of international humanitarian law can be said to exist

in early Confucian thought. The questions that Confucianism tackles belong more to

the realm of the jus ad bellum than to that of the jus in bello.

B. Hinduism

India is a vast and ancient land, and throughout its history, princes and kings

have done battle with one another. Wars were frequent before all the warring States

were united. The term “Hinduism” covers a large variety of beliefs, both polytheistic

and monotheistic. What they all have in common is belief in a cycle of birth and re-

birth that follows the law of karma and the caste system.

The caste system is the key to understanding Hindu rules of warfare. The aim

of a Hindu’s life is to collect good karma and thus avoid rebirth. Good karma depends

on one’s own actions, but actions may be said to be good only if they are in accord-

ance with the duties imposed by one’s own caste. A warrior (kshatriya) belongs to the

second caste, below the priests (Brahmins) and above the agriculturists and traders

(vaishyas). In addition to doing battle, which is the only duty imposed on his caste, a

warrior must possess a number of qualities326. But warfare did more than confer legit-

326 D. White, The Bhagavad Gita: A New Translation with Commentary, American University Studies, Series

VII, Theology and Religion, Vol. 39, New York, Peter Lang, 1988, chapter 18, v. 43, p. 228: “Heroism, dig-

nity, firmness, skill, courage in battle, generosity, and a lordly nature characterize the actions to which those

of the Kshatriya class are born.”

179

imacy on the warrior’s caste status. Fighting was also considered an honourable pro-

fession. In other words, for warriors, war was a vocation, a means of collecting good

karma and one also of earning their livelihood. A number of ancient Indian texts exalt

the ideas of honour, bravery, intrinsic values, and glory. If the warrior wages war vir-

tuously, he will do no harm to his karma. Indeed, in the Bhagavad-Gita, a section of

the Mahabharata327, it is the God Krishna himself who stresses the warrior’s duty to

fight. Although the importance of the Bhagavad-Gita in ancient India is a matter of

scholarly dispute, today it is considered to be one of the most important texts of

Hinduism328.

Between 200 BC and 200 AD, an unknown author composed the Manusmriti

or the Code of Manu. The Code of Manu is based on traditional religious and social

precepts. Addressing itself to kings and warriors, it emphasizes the importance of

fighting virtuously and provides detailed rules on the conduct of war: first, negoti-

ations have to be conducted; then, gifts have to be offered; after that, a veiled threat

may be made; a conflict between States – Dharma Yuddha – is permissible only as a

last resort329.

327 Ibid., chapter 3, v. 8-9, pp. 47 et seq.: "Perform all properly ordained action, for action is better than inac-

tion, and even the maintenance of your body is not possible without action of some kind. With the exception

of actions for the purpose of sacrifice, this world is bound by actions. Free from attachment, you should per-

form all actions as sacrifice."

328 C.A. Robinson, Interpretations of the Bhagavad-Gita and Images of the Hindu Tradition: The Song of the

Lord, New York, Routledge, 2006, p. 5: “In order to understand how the Bhagavad-Gita attained such signi-

ficance, it is necessary to locate it in the context of the construction of ‘Hinduism’ on a model of ‘religion’

derived from the Western cultural heritage with an emphasis upon ‘scripture’.”

329 P. Olivelle Manu’s Code of Law: A Critical Edition and Translation of the Mānava-Dharmásāstra, (trans-

lated by P. Olivelle), New York, Oxford University Press, 2005, chapter 7, verses 198 – 200, p. 164: “He

should strive to triumph over his enemies through conciliation, gifts, and fomenting dissension, employed

180

But Hinduism did not develop rules only for the jus ad bellum. It also estab-

lished detailed laws on the methods of warfare, on the weapons that may be used,

on the treatment of prisoners of war, and on the persons to be protected. Some ex-

amples:

Ancient India recognized the distinction between combatants and non-com-

batants330.

Only when warriors who were equally armed fought one another was fighting

regarded as virtuous331.

The means of destruction were required to be proportional to their ends332.

Weapons that caused unnecessary suffering were forbidden, as were those

that caused destruction on a large scale333.

Medical assistance should be given to the wounded soldiers of the enemy334

Aged men, women, children and those in retreat should not be killed335.

collectively or separately, but never through war (…) When the aforementioned three strategies fail, then let

him, always on guard, pursue war in such a manner that he will triumph over his enemies.”

330 P. Olivelle, Manu’s Code of Law, chapter 7 verse 90, p. 159.

331 Manu’s Code of Law contains this rule in its negative form in chapter 7 verses 92 - 93: A man engaged in

battle must never slay „a man without his armor, a naked man, a man without his weapons (…) a man with

damaged weapons (…)“. P. Olivelle, Manu’s Code of Law, chapter 7 verses 92 - 93, p. 159.

332 “When a fort can be captured by other means, no attempt should be made to set to it; for fire cannot be trus -

ted; it not only offends gods, but also destroys the people, grains, cattle, gold, raw materials and the like.

Also the acquisition of a fort with its property all destroyed is a source of further loss.” Kautilya’s Arthasas-

tra, translated by R. Shamasastry, 9. ed., Mysore, Padam Printers, 1988, Book XIII chapter IV, p. 434.

333 Manu’s Code of Law, chapter 7 verse 90, p. 159.

334 Agni Purana, CC XL, 15-8, cited in: B.C. Nirmal, International Humanitarian Law in Ancient India, in:

V.S. Mani (ed.), Handbook of International Humanitarian Law in South Asia, New Dehli, Oxford University

Press, 2007, p. 37, fn. 91.

181

Fruits, flower gardens, temples and other places of public worship should be

left unmolested336

A conqueror may not strike any of the following: a person who joins the palms

of his hands in supplication, persons who are in flight, someone who is sitting,

and anyone who says, “I am thine”337.

This short list shows that the law of war in ancient India was very well de-

veloped. The basis of these rules, and their motive force, is not belief in the dignity of

every individual human being, but the law of karma.

C. Buddhism

Buddhism was founded by Siddhartha Gautama (563 BC – 483 BC), a Hindu

prince and member of the family that ruled the Shakya kingdom; he was given the

title of “Buddha”, “the Enlightened One” after he had attained a stage of enlighten-

ment, or spiritual awakening. Buddha was moved by the sorrows that afflicted man-

kind, the sorrows that exist in the world. He wanted to break the cycle of rebirth and

bring an end to suffering in the world, to help people escape the cycle of rebirth and

attain nirvana. He considered war to be one of the main causes of the immense suf-

fering of humanity, because it is prompted by greed, revenge, and pride.

335 K.R.R. Sastry, Hinduism in International Law, p. 569. ("Hinduism and International Law", Recueil des

cours, Vol. 117 (1966), p. 569.

336 V.S. Mani, “International humanitarian law: an Indo-Asian Perspective”, International Review of the Red

Cross, vol. 83 No. 841, 2001, p. 65.

337 P. Olivelle, Manu’s Code of Law, chapter 7 verses 91 – 93, p. 159.

182

Buddhism added to existing patterns of thought by introducing an entirely new

dimension: compassion. The Buddha taught that in order to live virtuously, one must

forget the self and set about acquiring an immense compassion for all living

creatures; as a consequence of this one will come to accept that all human beings

are equal. A system of social division, like the Hindu caste system, is inconceivable

in Buddhism.

The belief that all human beings are equal means that Buddhism is intrinsically

pacifist: its attitude is that war should not exist at all. But war is an inescapable reality

and so it is not surprising at all to find that – in a jus ad bellum context – the legitim-

acy of wars of self-defence was being discussed by Buddhist scholars. But Buddha

himself, although he belonged to the warrior caste and had received excellent train-

ing in the arts of war, did not condone warfare at all. Even when the kingdom of his

forbears was attacked and destroyed he did not take up arms. As a consequence of

the lack of guidelines given by the Buddha himself, the ancient Hindu rules of warfare

were applied.338 The basic Buddhist principle of compassion softened these rules and

tilted them toward humanitarian belief.

It is important to mention the differences between the three main strains of

Buddhism339. Theravada Buddhism allowed laymen to defend themselves from at-

338 “As with Hindu law, which was based upon the concept of dharma, (…), so also Buddhism emphasizes con-

duct that axxords with the dhamma.” C.G. Weeramantry, “Some Buddhist Perspectives on International

Law”, in B. Boutros-Ghali amicorum discipulorumque liber, Pax, développement, démocratie, Vol. 1,

Bruxelles, Bruylant, 1999, p. 791.

339 In the beginning, there were two branches of Buddhism: Hinayana and Mahayana. Other branches of the re-

ligion, such as Zen and Vajrayana, developed from these. See T. Berry, Buddhism, New York, Columbia

University Press, 1996, pp. 57–68 and H. Schmidt-Glintzer, Der Buddhismus, Munich, Verlag C.H. Beck,

183

tack. In Mahayana Buddhism, interpretations of doctrine were always closely linked

with the political practice of the State, and therefore its character varied from place to

place. Zen Buddhism340 develops to perfection the idea of the nullity of everything: it

teaches that even the distinction between killing and non-killing should be aban-

doned. Vajrayana Buddhism has taken up the theory and practice of “liberation

through killing”: by transforming evil into good, the Buddhist liberates himself from the

material world. In other words: the Buddhist “kills” the evil within himself and liberates

himself by doing so. In Vajrayana and in Zen Buddhism, the term “killing” is not

meant to be taken literally: in this context, “killing” means overcoming one’s attach-

ment to the things of this world – but the potential for misuse is obvious.

The Eightfold Path embodies the practical aspects of Buddhism. Buddhist eth-

ics rely on the interpretation of these eight injunctions, two of which clearly concern

warfare and the trade in arms: “right action” and “right livelihood.” The first enjoins

Buddhists to conduct themselves peacefully and to abstain from actions that destroy

life. The second means that a Buddhist should follow no profession that harms oth-

ers, such as soldiering does. The principle of “right livelihood” explains why

Buddhism categorically condemns trafficking in arms and prohibits the slave trade.

Buddhism’s main contribution to international humanitarian law is the idea of

respecting all forms of life. Two thousand years ago, Buddhism formulated the prin-

ciples of mankind’s trusteeship of the world’s resources. Buddhism would compre-

hensively prohibit the destruction of crops and of flocks, the deforestation of an en-

2005. pp. 51–107.

340 Zen Buddhism is a branch of Mahayana Buddhism. See S. Schlensog, Die Weltreligionen für die

Westentasche, Munich, Piper, 2008, p.17.

184

emy’s territory, the poisoning of water and soil, the contamination of the atmosphere,

and all other forms of environmental damage.

Judge C.G. Weeramantry, in a separate opinion to the ICJ’s “Advisory Opinion

on the Legality of the Threat or Use of Nuclear Weapons,” made the following obser-

vations:

“The Buddhist tradition (…) would not countenance the taking of life, the in-

fliction of pain, the taking of captives, the appropriation of another’s prop-

erty or territory in any circumstances whatsoever. Since it outlaws war alto-

gether, it could under no circumstances lend its sanctions [sic] to weapons

of mass destruction – least of all to a weapon such as the nuclear bomb.

According to Buddhism there is nothing that can be called a ‘just war’ –

which is only a false term coined and put into circulation to justify and ex-

cuse hatred, cruelty, violence, and massacre. Who decides what is just and

unjust? The mighty and the victorious are ‘just,’ and the weak and the de-

feated are ‘unjust.’ Our war is always ‘just’ and your war is always ‘unjust.’

Buddhism does not accept this position.”341

The principles of non-violence and compassion render – or so it seems – any

Buddhist discussion of jus in bello almost a contradiction in terms. But the history of

just two countries, Japan and China, shows that even a pacifist religion like

Buddhism can be used to support violence and warfare.

341 Dissenting Opinion of Judge Weeramantry on the ICJ’s Advisory Opinion “Legality of the Threat or Use of

Nuclear Weapons” of 8 July 1996, ICJ Reports 1996.

185

The interpretation of Buddhism as approving of warfare, which was advanced

by a school of Zen Buddhism school before and during World War II in Japan was,

inter alia, based on a story in the Upaya-kaushalya Sutra regarding the actions of the

Buddha (Shakyamuni) in a previous life, when he was still a bodhisattva. According

to the story, the boddhisattva Shakyamuni killed a robber “out of compassion” for the

persons threatened by the robber342. This argument, of killing “out of compassion,”

combined with the principle of bushido (the way of the warrior), enabled Zen

Buddhism to lend its active support to the imperial army and navy of Japan by. From

the outset, Buddhism in Japan was expected to serve and protect the State, which in-

cluded helping to attain victory on the battlefield343.

The best expression of the Buddha’s original teachings on violence can be

found in the Dhammapada, which clearly does not endorse violence:

“Not by enmity are enmities quelled,

Whatever the occasion here.

By the absence of enmity are they quelled.

This is an ancient truth.” 344

342 B.D. Victoria, Zen at War, Lanham, Rowman and Littlefield, MD, 2006, pp. 225 et seq.: “While on board of

a ship, Shakyamuni discovers that there is a robber intending on killing all five hundred of his fellow passen-

gers. Shakyamuni ultimately decides to kill the robber, not only for the sake of his fellow passengers but also

to save the robber himself from the karmic consequences of his horrendous act. In Shakyamuni’s so doing,

the negative karma from killing the robber should have accrued to Shakyamuni but it did not, for as he ex -

plained: ‘Good man, because I used ingenuity out of great compassion at that time, I was able to avoid the

suffering of one hundred thousand kalpas of samsara (the ordinary world of form and desire) and that wicked

man was reborn in heaven, a good plane of existence, after death’.”

343 This phenomenon is known in Japan as “Nation-Protecting-Buddhism.” See B.D. Victoria, op. cit., supra

note Error: Reference source not found, p. 200.

344 The Dhammapada (trans. J.R. Carter, M. Palihawadana), New York, Oxford University Press, 1987, chapter

1, stanza 5, p. 13: “By the absence of enmity are they quelled.” This is annotated on p. 96 like this: “In the

186

And:

“All are frightened of the rod.

Of death all are afraid.

Having made oneself the example,

One should neither slay nor cause to slay.”345

Karl Jaspers observed that Buddhism, which teaches compassion for all living

beings and deplores aggression, was the only world religion that had known neither

violence nor the persecution of heretics; it abstained from inquisitions, witch trials,

and crusades.346 This statement must be qualified. History shows that Buddhism did

not advocate massacres to advance the spread of the religion (war carried out in the

name of religion with underlying State interests). But Buddhism provided spiritual

support for war that was motivated by State interests (war carried out in the name of

a nation-state with underlying religious interests). As soon as a religion forms a close

relationship with a State, the original intentions of its founder are not only en-

dangered but, usually, also distorted. Buddhism is – unfortunately – no exception.

D. Judaism and Christianity

The three religious or philosophical traditions we have discussed so far do not

consider human beings to be unique and the highest forms of life. When we turn to

Judaism and Christianity, we encounter two religions that are oriented quite differ-

same way, enmities are extinguished and pacified and they cease to be by means of absence enmity, by the

[clear] water of patience (khanti) and loving kindness (metta), and also by proper attentiveness.”

345 Ibid., chapter 10, stanza 129, p. 35. In chapter 15, stanza 201, the Buddha mentions the importance of being

indifferent to winning or losing: “Winning, one engenders enmity; miserably sleeps the defeated. The one at

peace sleeps pleasantly, having abandoned victory and defeat.” (ibid., p. 47).

346 K. Jaspers, op. cit., supra note Error: Reference source not found, p. 58.

187

ently: the uniqueness of every individual - the creation of the one true God - is a fun-

damental principle in both.

Judaism

Judaism is not only a religion but also a system of laws. The 613 command-

ments of the Torah regulate the daily lives of Jews in conformity with God’s will. The

Torah reiterates that Israel is God’s chosen nation – and this implies that it is the duty

of Israel to follow God’s will for the sake of its survival.

The Torah frequently addresses the subjects of war and violence: Yahweh, the

God of Israel, is often described as guiding Israel in its wars; and war itself is con -

sidered to be a legitimate instrument of politics, if it is waged in obedience to God’s

will. The Torah names two categories of virtuous war: obligatory war (milchemet

mitzvah) and optional war (milchemet hareshut). The great Jewish scholar Mai-

monides (1135/8 – 1204) commented:

“A King should not wage (any other wars) before a milchemet mitzvah.

What is considered as milchemet mitzvah? The war against the seven na-

tions (who occupied Eretz Yisrael), the war against Amalek, and (a war)

fought to assist Israel from an enemy which attacks them.

Afterwards, he may wage a milchemet hareshut, i.e. a war fought with

other nations in order to expand the borders of Israel or magnify its great-

ness and reputation.”347

347 Maimonides, Mishneh Torah, Sefer shoftim, Hilchot melachim u’milchamoteihem (Translated, with com-

mentaries and notes, by Rabbi E. Touger), New York / Jerusalem, Moznaim Publishing Corporation, v. 5:1,

p. 534.

188

Optional wars underlay the principles laid down in the book of Deuteronomy

(20: 1 – 20). Wars undertaken to extend the limits of the Holy Land belong to this cat-

egory. But the king or military leader of biblical Israel had to be certain of God’s ap-

proval, or his blessing, before pursuing war for such a purpose. A war waged in the

absence of divine sanction could not be called virtuous. Deuteronomy first stresses

the importance of the steadfastness of the soldier’s belief: his faith in God must be

strong. It then lists other conditions that must be met before a man can join battle:

“5 The officers shall say to the army: ‘Has anyone built a new house and

not dedicated it? Let him go home, or he may die in battle and someone

else may dedicate it. 6 Has anyone planted a vineyard and not begun to enjoy it? Let him go

home, or he may die in battle and someone else enjoys it.7 Has anyone become pledged to a woman and not married her? Let him

go home, or he may die in battle and someone else marries her.’8 Then the officers shall add, ‘Is any man afraid or fainthearted? Let him

go home so that his brothers will not become disheartened too’.”348

The Torah states that before waging war, Israel must offer terms of peace to

an enemy city349; and it forbids the cutting down of fruit trees350.

348 Deuteronomy 20: 5–8.

349 Ibid., 20:10 –15: “10: When you march up to attack a city, make its people an offer of peace; 11: If they ac-

cept and open their gates, all the people in it shall be subject to forced labour and shall work for you; 12: If

they refuse to make peace and they engage you in battle, lay siege to that city; 13: When the LORD your God

delivers it into your hand, put to the sword all the men in it; 14: As for the women, the children, the livestock

and everything else in the city, you may take these as plunder for yourselves. And you may use the plunder

the LORD your God gives you from your enemies; 15: This is how you are to treat all the cities that are at a

distance from you and do not belong to the nations nearby.”

350 Ibid., 20: 19-20: “19: When you lay siege to a city for a long time, fighting against it to capture it, do not

destroy its trees by putting an axe to them, because you can eat their fruit. Do not cut them down. Are the

trees of the field people, that you should besiege them? 20: However, you may cut down trees that you know

are not fruit trees and use them to build siege works until the city at war with you falls.”

189

Deutoronomy (20:16 – 17) also mentions obligatory wars. These are wars

ordered by God himself against the so-called “seven nations” and, especially,

Amalek351:

“16 However, in the cities of the nations the LORD your God is giving you

as an inheritance, do not leave alive anything that breathes. 17 Completely destroy them—the Hittites, Amorites, Canaanites, Per-

izzites, Hivites and Jebusites—as the LORD your God has commanded

you.”352

The Hebrew word for the decree to exterminate an entire people is herem.

This kind of war, herem, has been known by the people in the Moabite area at the

time of Amalek’s attack.353. Yahweh’s ordering the genocide of the Amalekites - Deu-

teronomy 25:17-19354 - is not a unique event355.

351 Later commentaries on the Torah argue that a defensive war may also be defined as an obligatory one, be -

cause the land that God gave Israel is holy and must be protected (here, we might find ourselves wondering

about the influence of such views on the situation in the Middle East today).

352 Deuteronomy 20: 16-17.

353 See H. Küng, Der Islam, Munich, Piper, 2006, p. 705: “The mere existence of a special verb for the herem

indicates that this cannot be the sole time in Moabite history that it was applied.”; L.H. Feldman, “Remember

Amalek!“ Vengeance, Zealotry, and Group Destruction in the Bible according to Philo, Pseudo-Philo, and

Josephus, Cincinnati, Hebrew Union College Press, 2004, p. 2 and 3.

354 Deuteronomy 25:17–19: “17: Remember what the Amalekites did to you along the way when you came out

of Egypt; 18: When you were weary and worn out, they met you on your journey and cut off all who were

lagging behind; they had no fear of God; 19: When the LORD your God gives you rest from all the enemies

around you in the land he is giving you to possess as an inheritance, you shall blot out the memory of

Amalek from under heaven. Do not forget!”

355 This divine command to commit genocide is not easily explained away. The story of the battle is as follows:

Amalek attacks Israel at Rephidim, Joshua establishes an army and Moses, together with Aaron and Hur,

climbs a mountain near the battlefield. He starts praying when the battle begins. Whenever his raised arms

190

The text that describes the battle between Amalek and Israel356 is open to sev-

eral possible interpretations. The difficulty of identifying a historic Amalek people has

led some scholars to conclude that the word must refer to something other than a

race of human beings, that, in fact, “Amalek” is symbolic of all the evil on earth. Thus,

everything that threatens God-given existence of Israel is similar to Amalek and must

be defeated. When the text is subjected to the methods of literary interpretation, it ap-

pears that the emphasis of the story is on the prayer, not on the battle. The battle is

decided by faith, the belief in God’s presence, and not by the weapons and strategy

employed by Joshua. Combining these two interpretations yields this conclusion: the

evil in the world will be defeated by God, provided Israel believes in Him and obeys

only His will and not its own. But even scholars who believe in the immutability of the

text, and therefore resist literary methods, conclude that this enigmatic text has no

consequences for today’s military operations357.

Members of the Jewish Diaspora live all over the world and have participated

in the development of international law in the West. Therefore, Jewish scholars have

traditionally adhered to the principle that only defensive war is allowed as well as to

the basic rules of international humanitarian law. The reaction of Rabbi Shlomo

Goren (1917 – 1994) - head of the Military Rabbinate of the Israel Defense Forces

fell, Amalek advanced; whenever he raised them, Israel advanced. With the help of Aaron and Hur, he man-

ages to keep his arms raised and as a result, finally, Israel triumphs.

356 Exodus 17:8 – 16 (New International Version)

357 N. Lamm, “Amalek and the Seven Nations: A Case of Law Vs. Morality”, in L. Schiffman and J.B. Wolow-

elsky (eds), War and Peace in the Jewish Tradition, New York, Yeshiva University Press, 2007, p. 214:“It is

impossible to identify the descendants of Amalek, the seven Canaanite nations, Ammonites, etc., and hence

the Biblical injunctions, mentioned above, are impossible to implement. Thus, halakhically, these command-

ments are no longer operative and have not been invoked since the Biblical period.”

191

and, afterwards, Chief Rabbi of Israel - to the Israel Defense Forces’ Doctrine State-

ment358 may serve as an example:

“Human life is undoubtedly a supreme value in Judaism, as expressed

both in the Halacha and the prophetic ethic. This refers not only to Jews,

but to all men created in the image of God.” 359

Christianity

Jesus of Nazareth, a Jew, believed that Judaism was in need of reform. Be-

cause his views were not accepted by the Jews, a new religious movement grew out

of Judaism: Christianity. Instead of underlining the importance of following all the

commandments of the Torah, Jesus stressed the importance of love, compassion

and respect for other human beings. He rejected unconditional and absolute legality.

He admonished the scribes who championed legal or legalistic Judaism. This was a

radically new, a revolutionary, approach.

The freedom of the individual, which is evident in Jesus’ actions, is a funda-

mental element in the Christian ethos. Such freedom could not be based on the law,

but only on love. Yet no true law is ever destroyed by love; it is merely absorbed and

contained360. In the Sermon on the Mount, Jesus tells his listeners:

"You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I

tell you, Do not resist an evil person. If someone strikes you on the right

cheek, turn to him the other also.”361

358 “The IDF servicemen and women will use their weapons and force only for the purpose of their mission,

only to the necessary extent and will maintain their humanity even during combat. IDF soldiers will not use

their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in

their power to avoid causing harm to their lives, bodies, dignity and property.”

359 N. Solomon, “Judaism and the Ethics of War”, International Review of the Red Cross, Vol. 87, No. 858

(2005), p. 307.

360 K. Jaspers, op. cit., supra note Error: Reference source not found, p. 99.

192

And:

"You have heard that it was said, 'Love your neighbour and hate your en-

emy.' 44But I tell you: Love your enemies and pray for those who perse-

cute you, that you may be sons of your Father in heaven. He causes his

sun to rise on the evil and the good, and sends rain on the righteous and

the unrighteous.”362

This was an entirely new approach. The principle of retaliation, an eye for an

eye, may well have been aimed at reducing the severity of punishment and the

spread of violence. It says: you may take only an eye for an eye, and not a life for an

eye. But Jesus asked his followers to refrain from even this. He aimed not to contain,

but to abolish violence:

“Blessed are the peacemakers: for they shall be called the children of God.”363

Jesus preached non-violence, loving one’s enemy, and turning the other

cheek. This leads to something akin to the Buddhist attitude to war: all wars are ille-

gitimate. But in contrast to early Buddhist teachings, the New Testament contains vi -

olent expressions and images and threatens unbelievers with divine retribution.

For instance, Jesus says, in a passage in the Gospel according to Matthew

(10:34):

“Think not that I am come to send peace on earth: I came not to send

peace, but a sword.”364

361 Matthew, 5:38–39 (New International Version)

362 Ibid., 5:43–45.

363 Ibid., 5:9.

364 Ibid., 10:34.

193

If the word “sword” was meant to be understood literally, we would be faced

with a contradiction: it would be difficult to reconcile what Jesus says in this passage

with his most important message: the ideas of love and respect. However, Christian

scholars argue that this use of the word “sword” is figurative365.

When the Gospels were written, Christianity was a small messianic movement

within Judaism. As it spread, questions about whether a Christian ought to serve in

the army began to arise. In early Christianity, this dilemma was insoluble, as shown

by the legend of the martyrdom of the Thebaic legion.

But the adoption of Christianity by the late Roman Empire, as its official reli-

gion, necessitated a new approach. In response to these needs, and especially for

the task of persecuting heretics, St Augustine developed in De civitate Dei the theory

of the “just war.” Basing himself on a biblical parable – according to which, a man in-

vites people to a banquet at his house, and on being turned down by all of them, tells

his servant to go out and find others and force them to come (Luke 14: 12-23) – Au-

gustine argued that it was not unjust to force people to enter the house of God. If a

specific war – so the Augustinian doctrine goes – is waged to help others, to free oth-

ers from violence, suppression or other difficult situations, then violence and war are

legitimate. In this way, St Augustine used the fundamental Christian principle of char-

ity to legitimize war366.

365 Similarly, in his letters, the apostle Paul often makes use of terms taken from the language of the military.

As in the passage mentioned above, Paul’s expressions should be – so it seems to me – understood figurat -

ively: he uses images of war to illustrate the spiritual battles a person has to endure. According to some

scholars, the ubiquity of the Roman military occupation and suppression marked the vocabulary of daily life

in those times.

194

The Augustinian theory of the legitimate use of force to achieve spiritual ends

was first applied during the Latin Christianity of the West; eventually, it permitted the

use of force to propagate Christianity. Contrary to all the teachings of the early

Church, wars were waged to convert the heathen, to spread the gospel, and to com-

bat heresy. The Crusades were perceived as just wars for they aimed only to reclaim

the fiefdom of Christ: the places touched by his feet, ubi steterunt pedes eius. Here,

we find a powerful concoction of religion, chivalric ideals, and the cult of relics. It was

believed that the Crusades had been approved by Christ Himself since the Pope, as

the spokesman of Christ, was said to have personally called people to arms (thus fur-

thering his aims in his conflicts with the German emperor).

For centuries, the Church was a political power with its own political interests.

Nevertheless, in 1139, the Second Lateran Council prohibited weapons “which were

too cruel to be used in warfare – the crossbow and the siege machine, which were

condemned as ‘deadly and odious to God’.”367

The Reformation split Christianity. Protestantism stressed the importance of

the individual conscience and developed (Calvinism excepted) no hierarchy368. As

P.H. Kooijmans has written, Protestant lawyers who wrote about international law

366 Cf. H.M. Hensel (ed.), The Prism of Just War: Asian and Western Perspectives on the Legitimate Use of

Military Force, Farnham/Burlington, Ashgate, 2010.

367 See Judge Weeramantry, op. cit., supra note Error: Reference source not found, p. 480.

368 The absence of an authoritarian impulse in Protestantism makes it difficult for the various Protestant

churches to formulate an opinion together and make it heard. After World War II, a number of them, acting

together, founded the World Council of Churches. Today, 349 churches and Christian denominations parti-

cipate in it. It has to be said, however, that not all Protestant churches are members of the World Council of

Churches.

195

“did so much more as individual Christians than as representatives of one of the main

branches of the Christian religion”369 but “the influences of Protestantism on the de-

velopment of international law cannot always be sharply distinguished from those of

Catholicism.”370

Because of the structure of the Catholic Church, Catholicism was able to de-

velop guidelines for the development of international law. During the papacy of Leo

XIII in the 19th century, the Catholic Church mediated in the conflict between the

German Empire and Spain. This was a pivotal event. Although the Salamanca school

under Vittoria and Suarez had already developed a theory of natural law based on

the idea of an international community, it was from this point that the Catholic Church

began to take part in developing the guiding principles of international law.

Catholic doctrine has two distinguishing features: the fundamental dignity of

the human person and the theory of bonum commune (“the common good”). The first

is the guiding principle371 of Catholic teaching. Everybody is created imago Dei, in the

image of God, without discrimination by race. The doctrine of human dignity is closely

linked to the theory of bonum commune ( To develop his talents, every person needs

369 P.H. Kooijmans, “Protestantism and Development of International Law”, Recueil des cours, Vol. 152

(1976), p. 109.

370 Ibid., p. 91. But it can be said that Protestantism led to the secularization of law. Alberico Gentili, a Protest -

ant, stressed the importance of separating theology and law. And Hugo Grotius asserted that the basic prin -

ciples guiding law would have importance even if God did not exist. This separation of law from theology is

important for the further development of international law.

371 A. Verdross, „Das bonum commune humanitatis in der christlichen Rechtsphilosophie, in W.M. Plöchl amd

I. Gampl (eds), Im Dienste des Rechtes in Kirche und Staat Festschrift zum 70. Geburtstag von Franz Arnold,

Wien, Verlag Herder, 1963, pp. 33 et seq und ibid., „Die Weiterbildung der klassischen Völkerrechtslehre

durch das 2. Vatikanische Konzil“, Österreichisches Archiv für Kirchenrecht, 21. Jahrgang (1970), pp. 4 et

seq.

196

the community. In later centuries, the meaning of “community” was expanded until it

meant “world community” in the philosophical theories of Vittoria and Suarez. Gaud-

ium et Spes - the Pastoral Constitution on the Church in the Modern World, which

was published by Pope Paul VI on 7 December 1965 - contains the Catholic church’s

last official pronouncement on the subject of the relationship between the individual

and the community372.

The Augustinian theory of “just war” became limited to defensive wars. The

Second Vatican Council took up the guidelines of the encyclical letter, Pacem in Ter-

ris, published first by Pope Paul VI on 11 April 1963 in the Pastoral Constitution

“Gaudium et Spes”, which condemned warfare and stressed the importance of nuc-

lear disarmament and the illegality of nuclear weapons373. Basing its arguments on

natural law, and on the principle of absolute pacifism demanded by Jesus of Naz-

areth and the main doctrine of compassion, love and true brotherhood, the Council it -

erated the importance of the principles of international law374. Article 2308 of the new

372 Gaudium et Spes, No. 74. “Men, families and the various groups which make up the civil community are

aware that they cannot achieve a truly human life by their own unaided efforts. They see the need for a wider

community (…) For this purpose they set up a political community according to various forms. The political

community exists, consequently, for the sake of the common good (…) Indeed, the common good embraces

the sum of those conditions of the social life whereby men, families and associations more adequately and

readily may attain their own perfection.”

373 Ibid., No. 80. “Any act of war aimed indiscriminately at the destruction of entire cities of extensive areas

along with their population is a crime against God and man himself. It merits unequivocal and unhesitating

condemnation.” For a critical view, see A. Primus, The Implication of Prevention of Conflicts for Justice and

Peace: In the Light of the Pastoral Letter: Gerechter Friede, Frankfurt am Main, Peter Lang, 2007, pp. 30 et

seq.

374 See Discours de Paul VI du 25 Mai 1968 au Congrès international des canonistes, DC, LXV, 1968, col.

1061, cited in P.H. de Riedmatten, "Catholicisme et développement du droit international", Recueil des

197

Catechism of the Catholic Church, published in 1997, declares that “All citizens and

all governments are obliged to work for the avoidance of war.”375

On the subject of conduct on the battlefield, the Catholic Church refers to interna-

tional humanitarian law and demands observance of the obligations imposed by it

during war376. From the Second Vatican Council on, the teachings of the Catholic

Church have been centred on the subject of “peace”377. Since 1968, 1 January has

been Catholic World Peace Day, a day on which to reflect on the question of achiev-

ing and keeping the peace all over the world.

Compared to the injustices of the past, these are small steps. But although

there are still movements and groups within Christianity that promote “holy wars” in

the name of religion, significant efforts are being made to reinvigorate the original

teaching of Jesus of Nazareth.

cours, Vol. 151 (1976), p. 128: "Le droit, en effet, n’est rien d’autre que la sûre garantie qui, d’une façon au-

torisée et légitime, promeut le bien commun.”

375 Catechism of the Catholic Church, revised in accordance with the original Latin text, promulgated by Pope

John Paul II, 2nd edition, Vatican City, Libreria Editrice Vaticana, 2000.

376 “In every case, in the face of such tragic and complex situations and contrary to all alleged ‘reasons’ of war,

there is a need to affirm the preeminent value of humanitarian law and the consequent duty to guarantee the

right to humanitarian aid to suffering civilians and refugees.” (Message of his Holiness Pope John Paul II for

the celebration of the World Day of Peace, 1 January 2000, "Peace on Earth to those whom God loves!”, Nr.

9). Available at: <http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-

ii_mes_08121999_xxxiii-world-day-for-peace_en.html>, accessed August 2010.

377 This teaching is obviously in greater accordance with the message of Jesus of Nazareth than the one provid-

ing justification for warfare.

198

E. Islam

Of the approximately fifty States with a Muslim majority population, fifteen

have declared Islam the official religion and themselves Islamic Republics. The

Sharia, or Islamic religious law, is their common ground. It is important in family and

inheritance law and sometimes in commercial law, but less so in international rela-

tions. In most of the Islamic States, religious and secular law co-exist. Islamic States

are parties to modern treaties of humanitarian law and the principle of pacta sunt ser-

vanda is formally acknowledged by Islamic law378.

Like Judaism, Islam is both a religion and a system of laws. The term “Islam”

means “submission to God” and expresses the principal belief of the religion: abso-

lute devotion to Allah is the requisite to a virtuous life.

378 T. Pfanner, Editorial, International Review of the Red Cross, Vol. 87, No. 858 (2005), p. 239.

199

The basis of Islam is the Koran, revealed to the Prophet Muhammad in Mecca

and Medina from 610 AD on. Together with the Sunna of the Prophet, ijma and

quiyas379, the Koran380 forms a religious legal system: the Sharia381.

The revelations the Prophet received in Mecca and Medina differed in their

substance. The Muslim community in Mecca was small. At that time, Islam’s main

aim was the overthrow of polytheism. It made no mention of wars against non-believ-

ers. However, in Medina, the community faced political problems. It had grown and

that created a need for greater organization. So, the revelations that the Prophet re-

ceived in Medina shifted in content: from general, religious revelations to specific,

politically relevant ones382.

379 It is very important to distinguish quiyas from ijtihad (independent juristic reasoning), for the “gates of ijti-

had” were supposed to have been closed after the ninth century AD. See A.A. An-na’im, Toward an Islamic

Reformation: Civil Liberties, Human Rights and International Law, Syracuse, Syracuse University Press,

1990, p. 25. There is a broad debate on the subject which – due to its volume – cannot be cited in this work.

380 The Koran sets out basic standards of conduct for the independent community ruled by Muhammad. Sunna

comes from sanna and means “model conduct”. Sunna is an ancient Arabic expression: it signifies the col-

lective memory of the model conduct of an important person. The Sunna of the Prophet is the history of

Muhammad’s model conduct. Ijma means “consensus”; this source became important centuries after

Muhammad’s death. It describes the consensus reached by Muhammad’s successors in finding a solution, in

conformity with Muhammad’s teachings. Quiyas means “analogy,” whereby the reason behind the original

rule and the newly created case rule had to be similar. Qyuias is applicable only when all the other sources

are of no help.

381 A.A. An-na’im, op. cit., supra note Error: Reference source not found, p. 25.

382 M.K. Masud, B. Messick and D.S. Powers, “Muftis, Fatwas and Islamic Legal Interpretation”, in M.K.

Masud, B. Messick and D.S. Powers (eds), Islamic Legal Interpretation: Muftis and their Fatwas, London,

Harvard University Press, 1996, p. 5.

200

Islam divides the world in two parts: dar al-harb (House/Abode of war) and dar

al-Islam (House/Abode of Islam)383. These two parts are permanently at war, but it is

war that does not involve the use of arms384.

The Sharia also deals with the use of force. Sura 2:190 of the Koran, which is

relevant for both jus ad bellum and jus in bello, says:

“Fight in the cause of God those who fight you, but do not transgress the

limits for God loveth not transgressors.”385

The Koran permits the use of force only when it is needed to defend oneself

and to propagate Islam. According to the teachings of Islam, as expressed in an au-

thoritative Sunna386, before war is declared against him, an adversary may choose

between the following: conversion to Islam, a peace treaty with Muslims that includes

the payment of a tax, or war. If the adversary inclines towards peace, the Koran 383 See S. Al-Zuhili, “Islam and international law,” International Review of the Red Cross, Vol. 87, No. 858

(2005), p. 278. Al-Zuhili asserts that “in fact, this division has no textual support (…) ”

384 From this perspective, S. Mahmassani’s view, that Islamic law is a law of peace, is right – but only with

regard to dar al-Islam and the Muslim community. See S. Mahmassani, “International Law in light of Islamic

doctrine”, Recueil des cours, Vol. 117 (1966), p. 242.

385 The meaning of the Glorious Qur’an, translated by M.M. Pickethall, New York, A. A. Knopf, 1930, p. 75,

Sura II. 190.

386 “Whenever the Prophet appointed a commander over an army or detachment, he enjoined upon him to fear

God regarding himself and regarding the treatment of the Muslims who accompanied him. Then he used to

say: Fight with the name of God and in the path of God. Combat those who disbelieve in God. Fight yet do

not cheat, do not break trust, do not mutilate, do not kill minors. If you encounter an enemy from among the

non-Muslims, then offer them three alternatives. Whichever of these they may accept, agree to it and

withhold yourself from them: So call them to embrace Islam. If they accept, then agree to it and withhold

yourself from them. If, however, they refuse, then call them to pay the jizya. If they accept, then agree to it

and withhold yourself from them. If they refuse, then seek help from God and fight them.”

201

states that the Muslim warrior should do so as well. As we can see, warfare is made

the last resort.

The following verses indicate when fighting is permitted:

“Permission (to fight back) is (hereby) given to those against whom war is

made387; and God is Most Powerful and Able to support them.

(They are) those who have been wrongfully expelled from their homes

(for no cause or reason) except that they say ‘God is our Lord’.”388

These verses “illustrate the reason for the legality of war, namely that Muslims are op-

pressed by others (the unbelievers)”389.

The most categorical approval for the use of force can be found in sura 9 of

the Koran. These verses are considered to be among the last revelations received by

Muhammad:

“But when the forbidden months are past, then fight and slay the Pagans

wherever ye find them, and seize them, beleaguer them and lie in wait for

them in every stratagem (of war); But if they repent, and establish regular

prayers and practise regular charity, then open the way for them; for God

is Oft-Forgiving, Most Merciful.”390

And:

“Fight those who believe not in God or the Last Day, nor hold that forbid-

den which hath been forbidden by God and His Apostle nor acknowledge

387 S. Al-Zuhili, op. cit., supra note Error: Reference source not found, p.279. Al-Zuhili uses a translation that

renders the text as “who are wronged“ instead of “against whom war is made”.

388 The meaning of the Glorious Qur’an, Sura XXII. 39.

389 S. Al-Zuhili, op. cit., supra note 378, p.279.

390 The meaning of the Glorious Qur’an, Sura IX. 5.

202

the Religion of Truth (even if they are) of the People of the Book, until

they pay Jizya with willing submission, and feel themselves subdued.”391

These verses show the shift in content mentioned above: in Medina, the first

Muslim community had to fight for its existence and the revelations received by the

Prophet/Muhammad grew more belligerent392. At first, the Koran granted legitimacy

only to war waged for defensive purposes; but the last revelations permit the under-

taking of war to propagate Islam. A certain evolution cannot be denied393.

With regard to jus in bello, the Sharia regulates, in detail, the conduct of the

Muslim warrior:

Muslim armies are not allowed to cheat, betray trust, or mutilate

Certain categories of non-combatant are inviolable: children under 15 years of age

and women; very old, blind, crippled, disabled and sick persons, as well as lunat-

ics and idiots; priests, monks and hermits. If a protected person takes part in

battle, he or she loses protection

391 Ibid., Sura IX. 29.

392 This opinion is shared by S.A. Aldeeb Abu-Sahlieh: “Avant le départ de Mahomet de La Mecque le Coran

intimait aux musulmans de ne pas recourir à la guerre, même s’ils étaient aggresses. Après le départ de La

Mecque et la création de l’Etat musulman à Médine, les musulmans furent aurorisés à combattre ceux qui les

combattaient.” See S. A. Aldeeb Abu-Sahlieh, Introduction à la société musulmane, Fondements, sources et

principes, Paris, Editions Eyrolles, 2006, p. 349.

393 H. Küng, op. cit., supra note Error: Reference source not found, p. 716: “Die Kriegsaufrufe des Koran

spiegeln die konkrete Situation des Propheten in der medinischen Periode wider und den besonderen

Charakter der medinischen Suren. Gerade die Kampfaufforderungen gegen die polytheistischen Mekkaner

können nicht als prinzipielle Rechtfertigung der Gewaltanwendung in die heutige Zeit übertragen werden.“

203

It is forbidden to cut down a fruit-bearing tree, slaughter a goat or cow or camel ex-

cept for food. In general, the destruction of property is forbidden – unless it would

contribute to the prosecution of war

It is forbidden to burn enemy warriors alive and the killing of one’s father, should

he be fighting alongside one’s enemies, is not permitted

Combatants must not be subjected to unnecessary suffering

Concerning prisoners of war, there is a system of ransom and release. If the en-

emy embraces Islam before or after capture, he will not be held prisoner . The

Koran itself orders that prisoners of war be treated well

Taking the spoils of war is permitted, in consequence of ancient tribal customs

Particularly since 11 September 2001, there have been heated debates on ji-

had, within the Muslim community and beyond. Jihad means “effort”: the struggle, in-

ner and outer, to serve Allah. Jihad should first of all be an inner struggle against

one’s own temptations and the evil (Greater jihad). And after that it can be directed

outwards to defend Islam against attacks, apostates, polytheists and scripturians

(Lesser jihad).

The words “holy” and “war” do not appear in combination in the Koran. The

militant tribal culture had marked Muhammad and had therefore, from its inception,

influenced the new religious movement.394. No other religion has spread so far and so

fast through conquest as Islam did in the few centuries after the Prophet had re-

ceived his revelations. Nevertheless, comparatively few verses in the Koran touch on

394 M. Köylü, Islam and its Quest for Peace: Jihad, Justice and Education, Washington D.C., RVP, 2003, p. 24:

“In the light of this brief evaluation concerning Islamic concept [sic] of war and peace, we can conclude that

war in Islam is a social phenomenon to protect people from all kinds of oppression, persecution, and in-

justice, and to maintain peace among the people.”

204

war and violence. The words “mercy” and “peace” occur more frequently than does

“jihad.”

Terrorist acts, particularly suicide bombings and aircraft hijackings, have had a

great influence on the Western vision of Islam. The Koran is often used to justify ter-

rorism, the use of clandestine violence against non-combatants for political ends 395.

Although there are verses in the Koran that permit the use of force, it cannot be

claimed that they give legitimacy to terrorism as well. Feeling threatened by secular-

ism, for instance, does not give anyone the right to use clandestine violence. As Ab-

dullahi Ahmed An-na’im has said, “As long as these threats and influences are non-

violent, Muslims are entitled to respond only in non-violent ways.”396

Modern Islamic scholars397 have made impressive efforts to take into account

the historical background of the Sharia. But their success is to a large degree de-

pendent on their being able to work in an open, pluralistic society that is supported by

a liberal constitutional order.

III. Concluding remarks

Religions have pertinence for international humanitarian law for a number of

reasons. On the one hand, they provide a rich fund of doctrines and principles, prac-

tices and philosophical systems, many of which are now recognized as binding under

international law. In many respects, religions promote the same values and goals as

the system of international humanitarian law. On the other hand, religion has not al-

395 A.A. An-na’im, op. cit., supra note Error: Reference source not found, p. 156.

396 Ibid., p. 157.

397 See U. Rudolph, Islamische Philosophie, Munich, Beck, 2004.

205

ways been benign. It has also been the cause of violence, persecution and social dis-

ruption. In many cases, it was the source of suffering and of destruction. It has not

only a constructive but also a dark, destructive side, or, in the words of the Roman

poet Lucretius: “Tantum religio potuit suadere malorum”398 (So potent was religion in

persuading to evil deeds).

What role, then, should religion play within the legal system?399 Perhaps that of

a support for international humanitarian law. Religion has a power which is higher

than that of the legal system. That is because legal rules are, of necessity, abstract

and exclusively rational, and do not appeal forcefully to the imagination and the emo-

tions, whereas religious ideas or principles, using images and stories, are an integral

aspect of human existence. It is important for international law to use the resources

of religion, for the law cannot make as forceful an appeal. Religion can teach com-

passion or rather awaken the compassion that is inherent in humanity. It is up to in -

ternational lawyers to explain, disseminate and implement the principles and rules of

international humanitarian law; and to stress that these rules are not abstract legal

constructs imposed by technocrats, that, in fact, they reflect fundamental values

shared by many civilizations.

Although religion can contribute to the effectiveness of humanitarian law, it

should be clearly understood that the rule of law takes precedence over religion.

Most religions claim to embody truths that are unique, universal and eternal. Some

theocratic regimes even claim to be above the law. This cannot be accepted in the

light of international law, which is inclusive and universal in scope and is - based on 398 Titus Lucretius Carus, De rerum natura, Stuttgart, Reclam, 2000, Liber 1 vers 101. 

399 Ch. Tomuschat, "Die Menschenrechte und die Religionen", in H.R. Schlette (ed.), Religionskritik in

interkultureller und interreligiöser Sicht, Bonn, Borengässer, 1998, pp. 145 et seq.

206

treaty, custom and general principles of law - binding on all States and on all other

relevant actors: pacta sunt servanda. Nothing, not even religion, is above the law.

The precedence of the rule of law has several consequences. First: The indi-

vidual right to freedom of religion is an element of the rule of law. That fundamental

right of the individual ranked first among the “four freedoms” proclaimed by President

Franklin Roosevelt as a cornerstone of the evolving order of human rights. And it

seems no accident to me that at the Congress of Berlin in 1878, religious freedom

was declared the basis for the emancipation of the Balkan States. It is as if the

statesmen assembled in Berlin had foreseen the wars of ethnic and religious identity

and the practice of ethnic cleansing that would take place in the Balkans more than a

hundred years later. Religious freedom is the backbone of a secular order. It provides

religious groups and institutions with opportunities to be heard but it also restricts

their ability to abuse religion (by using it to justify cruelty, for instance). The individual

right to religious freedom finds its fullest realization in an open, democratic and secu-

larized society400. It is only within such a social framework that critical discussion of

religious questions is possible.

Second: Most of the religious texts in existence contain principles that are

compatible with modern international humanitarian law. All religious texts have to be

subjected to fresh interpretations periodically and there is an urgent need for using

the methods of literary studies for this purpose. It is only by doing this that the histor-

400 As Karl Popper has said, only human beings, not history itself, can progress; and democratic structures en -

able that progress: K. Popper, The Open Society and Its Enemies, Vol. 2: Hegel and Marx, 5th ed., Princeton,

Princeton University Press, 1966, p. 280: “‘History’ cannot do that; only we, the human individuals, can do

it; we can do it by defending and strengthening those democratic institutions upon which freedom, and with it

progress, depends.”

207

ical background of a religious prescription can be discovered and the intent of a reli-

gious text discerned. Religious teachings and traditions need permanent critical re-

reading; what is required is a contempory understanding of such texts, and an inter-

pretation grounded in a modern system of values. Religious texts and customs have

to be interpreted in the light of historical changes and the overriding considerations of

human rights and humanitarian law.401 Recent suggestions for the re-interpretation of

Sharia law may yield promising solutions. Yet this process can not be dictated by out-

side institutions.

International institutions like the ICRC and others were built into the interna-

tional legal system with one purpose: to incorporate the ethical principles proclaimed

by various religious traditions while being open to cooperate with members of all

creeds and religiously neutral in their own functioning. That means that the religious

beliefs and practices of the people in need of help are accepted – if they are in ac-

cordance with the basic principles of human rights and international humanitarian

law. No violation of these principles can be justified on religious grounds. For in-

stance, it cannot be tolerated that only men are entitled to medical assistance 402.

401 See, in more detail, D. Thürer and K. Furer, “La religion contre le principe fundamental d’humanité? L’in-

terprétation de texts religieux d’après les principes du droit international”, in R. Trindade, H. Peter and Ch.

Bovet (éds.), Economie, Environnement, Ethique. De la responsabilité sociale et sociétale, Liber Amicorum

Anne Petitpierre-Sauvain, Geneva, Schulthess, 2009, p. 367 et seq.

402 Because it would violate the principle of non-discrimination: See J. Pictet, Développement et principes du

droit international humanitaire, Paris, Institut Henry-Dunant/Pedone, 1983, p. 81 : “Le deuxième des prin-

cipes communs, que nous ne développerons pas ici, est celui de NON-DISCRIMINATION: les personnes se-

ront traitées sans aucune distinction fondée sur la race, le sexe, la nationalité la langue, la classe social, la for -

tune, les opinions politiques, philosophiques ou religieuses, ou sur un autre critère analogue.”

208

To sum up: international humanitarian law and religious tradition both exist for

the benefit of human beings. Although their relationship may be difficult sometimes

and marked by tensions the two systems are not necessarily in complete opposition,

they can support, rather than rival the law. Where religion can strengthen the respect

of international humanitarian law, it should receive every encouragement to do so.

209

CHAPTER FIVE

INTERNATIONAL HUMANITARIAN LAW IN A GLOBAL ERA

“The death toll from small arms dwarfs that of all

other weapons systems — and in most years greatly

exceeds the toll of the atomic bombs that devast-

ated Hiroshima and Nagasaki. In terms of the

carnage they cause, small arms, indeed, could well

be described as ‘weapons of mass destruction.’ Yet

there is still no global non-proliferation regime to

limit their spread, as there is for chemical, biological

and nuclear weapons.”

- Kofi Annan403

In this chapter we will take a broad perspective, a departure from the prevail-

ing practice of studying international humanitarian law from a narrow angle of vision.

Our emphasis will be on some of the new developments in contemporary armed con-

flict, the economic apects of warfare and their implications for humanitarian law. We

will study the changing nature of warfare, the economic incentives provided by con-

temporary wars for various actors as well as the latter’s opportunities in a globalized

economy. There will be a particular focus on the exploitation of natural resources and

the arms trade. At the end of this chapter, I will take up the issue of responsibility.

Basing themselves on the ideas of Immanuel Kant, many free-trade theorists

have argued that opening up economies has a pacific effect because – through divi-

sion of labour and specialization in only a few commodities – nations become inter-

connected and, more importantly, interdependent. Living standards would rise be-

403 United Nations, We the Peoples: The Role of the United Nations in the Twenty-first Century, Report of the

Secretary-General, 27 March 2000, UN Doc. A/54/2000, paras 238 and 239.

210

cause each nation would concentrate on the commodities that it can produce most

efficiently, which are then traded for commodities for whose production it does not

have the necessary resources. Waging war would then be irrational because the

costs of war and of lost trade would be disproportionately greater than any gains that

might accrue through war. The homo economicus approach tells us that peaceful re-

lations are economically rational because war costs a lot more than it brings in404.

From a macroeconomic point of view this is certainly true. But we must bear in mind

that the opening up of economies and the great increase in trade relations has cre-

ated, on the microeconomic level, opportunities for various private actors, including

those who will benefit from war. These actors may have a genuine economic interest

in supporting or instigating armed conflict. Many of the new actors discussed in this

chapter benefit from the global economy. Regulation and overview are far from being

comprehensive and the world’s harbours offer innumerable hiding places for all sorts

of commodities.

404 The liberal peace thesis does not conceal, however, that democracies are perfectly capable of going to war

with autocratic regimes that do not share their fundamental values. Certain scholars in the area of interna-

tional relations even contend that there is a growing probability that such wars will have economic motives.

From their point of view, armed conflicts over depletable resources will become more probable in the future.

Such scholars have argued that the war against Iraq in 2003, for example, was mostly about oil. Indeed, the

European Union’s military doctrine explicitly aims to protect natural resources such as oil and other essential

goods. See A. Zumach, Die kommenden Kriege, Köln, Kiepenheuer and Witsch, 2005. Analyses of this kind

focus on potential inter-State wars that are motivated by economic interests. They have a strong economic

element and are certainly influenced by the process of globalization. However, these wars resemble ‘old’

wars and are therefore not part of our analysis in this chapter. It may be argued that, although they may raise

questions with regard to jus ad bellum, they do not represent a new challenge to international humanitarian

law.

211

For us, war in the context of a globalized economy is of great relevance: we

want to know what the implications are for international humanitarian law. Against the

background of the changing nature of war, four crucial issues are taken up and dis-

cussed in the following pages. First, a number of new actors have mounted the

stage. Among them are private military and security companies whose numbers are

growing rapidly. During the last two decades, the provision of private military services

has become a multi-billion dollar industry. Today, these companies fulfil virtually

every function that had once been the exclusive domain of the regular army. The

second issue we are going to examine is the role of natural resources in contempor-

ary armed conflicts. Trade in natural resources and access to international markets

are essential conditions for financing and sustaining armed conflict in many places.

Our third issue is the flourishing arms trade and the easy availability of arms: this has

grave consequences for the nature and extent of armed conflict. Today, small arms

and light weapons are seen as the “world’s real weapons of mass destruction”405.

Fourth, I want to ask how responsibility should be assigned when those those

weapons are used to commit war crimes. The issue of responsibility will be compre-

hensively treated in the concluding sub-chapter.

I. The changing nature of warfare

A. The “new wars” thesis

Inter-State wars, as they were known in the nineteenth century and for a con-

siderable part of the twentieth, are much less common now than in the past406. This is 405 Graduate Institute of International Studies, Small Arms Survey 2001: Profiling the Problem, Oxford, Oxford

University Press, 2001.

406 N. P. Gleditsch, P. Wallensteen, M. Eriksson, M. Sollenberg, H. Strand, “Armed conflict 1946-2001: A new

dataset”, Journal of Peace Research, Vol. 39, No. 5 (2002), pp. 615 et seq.

212

not to say that humankind has reached the end of military history, as it were. The

hopefulness, even euphoria, of the immediate post-Cold War period is very much a

thing of the past407. Armed conflicts still take place. But modern wars are often very

different from those of the past.408 This, broadly speaking, is the thesis of those ana-

lysts who take the view that the nature of warfare has been profoundly transformed.

The “new wars”409, they argue, do not only involve States, who have lost their

monopoly of warfare. Para-State and private actors, completely detached from State

structures, now occupy the stage: local warlords, rebel groups, private military and

security companies, international terror and criminal networks are only the most

prominent among them. These non-State actors develop their own military and eco-

nomic structures and, as a result, enjoy a great deal of autonomy.

The defining characteristic of the “new wars” is asymmetry410. Inter-State

wars were – so the classic “model” – symmetric: they were contested by States who

had a regular army at their disposal, a territory to defend and a population to protect

against the enemy. In an asymmetric war, the parties do not have the same military

407 Cf. F. Fukuyama, The End of History and the Last Man, New York, Free Press, 1992.

408 See, as a fascinating picture from past times T. Meron, Henry’s Wars and Shakespeare’s Laws – Perspect-

ives on the Law of War in the Later Middle Ages, Oxford, Clarendon Press, 1993.

409 Cf. M. Kaldor , New and Old Wars: Organized Violence in a Global Era, Cambridge, Polity Press, 1999; H.

Münkler, Die neuen Kriege, Reinbeck bei Hamburg, Rowohlt, 2003; G. Carbonnier and S. Fleming (eds),

War, Money and Survival, Geneva, ICRC, 2000; S. Frech and P. I. Trummer, Neue Kriege: Akteure, Gewalt-

märkte, Ökonomie, Schwalbach, Wochenschau Verlag, 2005; D. Thürer, “The ‘Failed State’ and Interna-

tional Law”, International Review of the Red Cross, Vol. 81, No. 836 (1999), pp. 731 et seq.

410 T. Pfanner, "Asymmetrical warfare from the perspective of humanitarian law and humanitarian action", In-

ternational Review of the Red Cross, Vol. 87, No. 857 (2005), pp. 149 et seq.; H. Münkler, Der Wandel des

Krieges: Von der Symmetrie zur Asymmetrie, Weilerswist, Velbrück Wissenschaft, 2006.

213

capacity and do not employ the same tactics: the aim of the weaker party is to coun-

teract an adversary’s strength by resorting to unconventional and often unlawful

methods of war. As a result, even powerful States with strong armies struggle to

cope with asymmetric strategies; they are tempted to respond with equally illegal

means. Such wars are easy to begin and, for one side at least, low-cost. The terrorist

attacks against the U.S. of 11 September 2001 and the subsequent counter strike –

the US war against Afghanistan – have revealed how “cheaply” a war can be started.

It turned out to be a formidable challenge – even for the most powerful nation in the

world – to wage war against an ostensibly weaker adversary. Fundamental inequalit-

ies in force, size, weapons, strategies, resources, legitimacy, etc. are an attribute of

virtually all new wars.

One of the grimmest developments in contemporary warfare – particularly

from the perspective of humanitarian law – is the rising toll exacted on civilians.

Those who endure the consequences of war are not, primarily, combatants, but civil -

ians. The prototype conventional war is characterized by battlefields and frontlines

that are clearly delineated: it begins with a declaration of war and ends with a peace

treaty. In “new wars”, there is no such delimitation. These wars can be waged any-

where: they are often fought in densely populated areas where it is impossible to

separate combatants from civilians.411 The fighting seldom takes place at close quar-

ters; and the possibility of a decisive battle that would break the will of one of the war-

ring parties, and bring an end to hostilities, does not exist. Also, such wars some-

times create economic opportunities or new living arrangements. In these instances,

neither side may be interested in peace. That is why, in certain circumstances, the 411 Cf. J. Kellenberger, “Sixty years of the Geneva Conventions: learning from the past to better face the fu -

ture”, Ceremony to celebrate the 60th anniversary of Geneva Conventions, Geneva, 12 August 2009, Interna-

tional Review of the Red Cross, Vol. 91, No. 875 (2009), pp. 613-614.

214

chances that such a conflict will end decisively are rather slim. As we shall see in

more detail below, combatants, while not slaughtering one another, deliberately

make civilians the targets of their violence, which includes genocide and forced dis-

placement. Some of the “new war” analysts argue that as a result of the “deregulation

of war”, combatants show fewer scruples now. For them, international humanitarian

law has no meaning: some have not even heard of it. The international law of war

has become as irrelevant as national military rules of conduct412. It should come as

no surprise that “new wars” can be extraordinarily brutal, not least because the brunt

of the suffering is borne by civilians.

The “new wars” thesis has gained much, but not unanimous, support. Some scholars

in the field of international relations and some political scientists argue that the dis-

tinction between “new” and “old” wars is exaggerated and that the thesis is true only

if “new” wars are compared to a particular model of war derived from the – geograph-

ically and temporally delimited – European experience of the nineteenth and early

twentieth centuries413. And as the European model never really spread globally, it

may be misleading to use it as a yardstick. The critics of the “new wars” thesis argue

that there have always been fewer Inter-State wars than other types of war. And

while asymmetric wars, as a consequence of the consolidation of nation States, have

indeed disappeared from the European continent, they have continued to exist in the

rest of the world. These critics regard comparisons between “new wars” and

European wars of a particular period as dubious at best and meaningless at worst.

They point out that anyone who chose to compare a contemporary civil war with, say,

412 H. Münkler, op. cit., supra note Error: Reference source not found, p. 300.

413 Cf. E. Newman, “The ‘New Wars’ debate: A historical perspective is needed”, Security Dialogue, Vol. 35,

No. 2 (2004), pp. 173 et seq.

215

the colonial wars undertaken by Leopold II would discover a great many similarities

between the two.

B. Implications for international humanitarian law

Our purpose in taking up the “new wars” debate is not to decide which side is

more persuasive. As students of international law we may permit ourselves to leave

this question to historians and political scientists. What is most interesting for our pur-

pose is that even the critics seem to agree that the typical European war of the nine-

teenth century, and the first half of the twentieth, differed fundamentally from most

contemporary armed conflicts. If we accept this, what are the implications for interna-

tional humanitarian law? Has not international humanitarian law been built on exactly

the European model of inter-State war? And since it has, should humanitarian law be

reconsidered?414

Some of the most prominent authors of the “new wars” thesis are of the view

that, if inter-State war is in fact becoming obsolete, then international law, and inter-

national humanitarian law in particular, may be well on their way to become irrelev-

ant415. Other, more thoughtful observers point to the growing role international hu-

manitarian law plays in internal armed conflict and in occupied territories; they also

refer to the growing interconnectedness of international humanitarian law with inter-

414 Cf. S. Hobe, „Das humanitäre Völkerrecht in asymmetrischen Konflikten: Anwendbarkeit, modifizierende

Interpretation, Notwendigkeit einer Reform?“, in A. Zimmermann et al., Moderne Konfliktformen –

Humanitäres Völkerrecht und privatrechtliche Folgen, Heidelberg, C.F. Müller, 2010, pp. 41 et seq.

415 See, e.g., T. Pfanner, op. cit., supra note Error: Reference source not found, p. 158 and H. Münkler, op. cit.,

supra note Error: Reference source not found, pp. 9 et seq.

216

national human rights law and the newly created judicial mechanisms as means to

implement the rules and principles of international humanitarian law416.

However, it is true that in an asymmetric conflict respect for international hu-

manitarian law is endangered to a certain degree. If in a symmetric conflict there is a

greater chance that humanitarian law is respected, this is is at least partly out of the

fear that the adversary may retaliate in kind to any violations of the law. Some ob-

servers go so far as to say that in asymmetrical wars, “the expectation of reciprocity

is basically betrayed and the chivalrous ethos is frequently replaced by treachery“417.

A weaker party, owing to its inferior capacity, can do no harm to the “hard targets” of

its adversary. It concentrates on “soft targets”: i.e. it directs its violence mainly

against defenceless civilians.418 Furthermore, it is not entirely unusual for members of

the weaker party to a conflict to hide among civilians, thus putting at risk the principle

of distinction between combatants and civilians – one of the basic principles of hu-

manitarian law. One analyst concludes:

“As the warring parties are increasingly unequal and the principle of equality of arms

does not apply to them, they have disparate aims and employ dissimilar means and

methods to achieve their goals. Whereas classic international armed conflicts between

States of roughly equal military strength are becoming the exception, internal wars are

mostly fought between adversaries that are unequal in many respects. The militarily

weaker party to such an asymmetrical war may be tempted to employ unlawful meth-

ods in order to overcome the adversary’s strength and exploit its weakness.”419

416 See Chapter III above.

417 T. Pfanner, op. cit., supra note Error: Reference source not found, p. 161; see also W. M. Reisman, “After-

shocks: Reflections on the Implications of September 11”, Yale Human Rights and Development Law

Journal, Vol. 6 (2003), pp. 81 et seq.

418 Cf. J. Kellenberger, op. cit., supra note Error: Reference source not found, p. 615.

419 T. Pfanner, op. cit., supra note Error: Reference source not found, p. 173.

217

In an asymmetric conflict, a stronger party, too, has less incentive to abide by inter-

national humanitarian law: it is beyond the reach of conventional military attack and

does not have to fear retaliatory acts against its combatants. The most obvious ex-

amples are aerial warfare and remote-controlled warfare against a much weaker ad-

versary: the war against Afghanistan in 2001 comes to mind immediately. In short,

the asymmetric structure of a conflict lowers both sides’ willingness to respect hu-

manitarian law.

From a normative standpoint, such attitudes – on both sides – merit condem-

nation. International humanitarian law explicitly forbids any retributive violation of its

provisions. Negative reciprocity of this sort has no place in human rights and human-

itarian law. The Vienna Convention on the Law of Treaties makes it clear that the

idea of reciprocity “do[es] not apply to provisions relating to the protection of the hu-

man person contained in treaties of a humanitarian character, in particular to provi-

sions prohibiting any form of reprisals against persons protected by such treaties.” 420

And Additional Protocol I to the Geneva Conventions again explicitely prohibits re-

prisals against the persons and objects protected.421 In other words, all the parties to

a conflict are obliged to respect the basic rules and principles of international human-

itarian law.

The following observation encapsulates the immense challenges confronting

humanitarian law at present:

420 Art. 60 (5) of the Vienna Convention on the Law of Treaties. Done at Vienna on 23 May 1969, entry into

force on 27 January 1980. United Nations, Treaty Series, Vol. 1155, p. 331.

421 Art. 20 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protec -

tion of victims of international armed conflicts, 8 June 1977.

218

“Behaviour that was proscribed according to the classical rules of warfare and codified

in the laws of war in the late nineteenth century and early twentieth century, such as at-

rocities against non-combatants, sieges, destruction of historic monuments, etc., now

constitutes an essential component of the strategies of the new mode of warfare.”422

II. New actors

One of the features of armed violence since the 1990s is the emergence of a

number of new actors and, in some cases, the reappearance of older actors. This

has created new challenges for international humanitarian law. I have already briefly

mentioned warlords, rebel groups and international terror and criminal networks and

would like to concentrate now on a particular sort of actors the number of which has

multiplied in recent years.

A. Private military companies and economic interests

Private military and security companies (PMCs or PMSCs) are organized like

private corporations and, like any other company, their main aim is to be profitable.

They offer a range of services: from constructing military camps, providing military

and police training, logistical and intelligence services and technical support for

weapons systems, protecting property, and maintaining military prisons, to taking a

direct part in combat operations423. Escalating demand for military services have cre-

ated an impressive market for these companies. In 2003, an expert estimated that

the industry had “a hundred billion dollars in annual global revenue”424. But what 422 M. Kaldor, op. cit., supra note Error: Reference source not found, p. 8.

423 For a comprehensive study of the phenomenon, see P.W. Singer, Corporate Warriors: The Rise of the

Privatized Military Industry, London, Cornell University Press, 2004. See also, J. Scahill, Blackwater: The

Rise of the World’s Most Powerful Mercenary Army, New York, Nation Books, 2007.

424 P.W. Singer, interviewed by T. Gross on 9 July 2003. A transcript of the interview is available at: <www.g-

lobalresearch.ca>, accessed August 2010.

219

makes them able, we may wonder, to provide all those services? The answer is fairly

simple: they buy military equipment and hire professionals and other personnel –

named “private contractors” by some and “mercenaries” by others – who provide

their know-how and combat experience in exchange for an attractive salary that may

rise to up to 1000 dollars a day425.

The mercenary’s profession is an ancient one. In the last 200 years, during the

consolidation of nation States, it had been largely displaced by the State’s monopoly

of power and the evolution of mass armies. After the end of the Cold War, however,

there has been a revival of “mercenarism”. Significant numbers of men and women,

employed by PMCs, have participated, and are still participating, in armed conflicts in

various parts of the world. Though the first modern companies of this kind were cre-

ated in the late 1980s, ”mercenarism” really came into its own only after 11 Septem-

ber 2001, and with the onset of the wars against Afghanistan in 2001 and Iraq in

2003. PMCs have sprung up in their hundreds, most of them headquartered in the

United States, Great Britain, South Africa, Australia and Canada. In Iraq, the United

States depends heavily on military services provided by these private firms. The pre-

cise number of the companies and contracted private persons providing military ser-

vices in Iraq is unknown. The Pentagon’s estimates put the number of private con-

tractors in Iraq, as of 2006, at 25,000; but a 2006 military census put the figure at

100,000. NGOs speak of “well over 200,000 U.S. government private contractors”426.

425 P. Lock, “Privatisierung von Sicherheit: Ist der Irak unsere Zukunft?” in Deutsches Institut für

Menschenrechte (ed.), Jahrbuch Menschenrechte 2007 – Privat oder Staat? Frankfurt am Main, Suhrkamp

Verlag, 2006. Cf. PBS Frontline, Private Warriors, a 2005 documentary about private contractors in Iraq.

Available at: <www.freedocumentaries.org>, accessed August 2010.

426 The Washington Post reported in December 2006 that: “There are about 100,000 government contractors op-

erating in Iraq, not counting subcontractors, a total that is approaching the size of the U.S. military force

220

Not surprisingly, the bulk of the services provided by the industry are purchased by

the American government. But private firms, international organizations and even

NGOs also make use of these services. It may be said that they buy security in order

to protect their – beyond doubt very diverse – interests in conflict zones.

Iraq is currently the most lucrative market for the industry, followed, probably,

by Afghanistan. But PMCs have not limited their activities to a few locations. In fact,

they are now operating in more than 100 countries. Since the late 1980s and early

1990s, the largest PMCs have grown dramatically, with tens of thousands of employ-

ees on their payrolls and contracts worth billions of dollars. Kellogg, Brown & Root,

better known as KBR, for example, boasts of being “the largest contractor for the

United States Army”427 and “the world's largest defense services provider”428. In 2008,

by its own account, KBR employed more than 50,000 people; and in 2007, the rev-

enue from its provision of “support services to the U.S military” in Iraq alone amoun-

ted to approximately 4.35 billion dollars429. These numbers alone suggest how dra-

matically the private military industry has expanded in recent years.

The impact of private military companies on the course, and the outcome, of an armed

conflict may be considerable. An example from the past may be instructive: the impact

there, according to the military's first census of the growing population of civilians operating in the battle -

field.” The Pentagon’s only previous estimate had put the figure at 25,000. Cf. R. Merle, “Census Counts

100,000 Contractors in Iraq”, Washington Post, 5 December 2006. In 2008, Human Rights First, an NGO

based in New York and Washington D.C., put the figure at 200,000; cf. Human Rights First, “Blueprint for

the Next President Provides Step-by-Step Guide to End Private Contractor Impunity”, press release, issued

on 17 November 2008.

427 See <www.kbr.com>, accessed August 2010.

428 Ibid.

429 Cf. KBR, Inc., Annual Report 2007, Ibid.

221

of an American-based PMC, Military Professional Resources Inc. (MPRI), on the

Balkan wars430. This firm was given a contract by the Croatian government – worth 75

million dollars – to reorganize the routed Croatian army and train its officers. Within a

few months, MPRI had formed a powerful force consisting of members of paramilitary

groups and irregular militias, persons associated with organized crime, regular soldiers

and policemen. Before launching their offensive against the Serbs, Croat leaders dis-

cussed the details with MPRI. The Serbian Republic of Krajina was taken within a few

days. This was followed by ethnic cleansing: entire villages were destroyed and more

than 100,000 persons forced to flee the territory. MPRI denied direct involvement in the

operation. Military experts, however, agreed that the operation, which had the appear-

ance of something taken from a NATO manual, would not have been possible without

the involvement and assistance of the company. A few months later, the President of

Bosnia, impressed by the company’s abilities, said that he would sign the Dayton

peace agreement only if MPRI would build up the Bosnian army as well. That contract

was worth 400 million dollars. This example, which amply illustrates the influence of

PMCs, is not an isolated case: numerous other instances can be cited.

We may wonder whether the privatization of war does not undermine the State-

centred international order established by the Peace of Westphalia, which was “de-

signed to put an end to the privatization of wars in the seventeenth century”. What

are the implications of this for the State-based model? What are they for public inter-

national law in general?431

B. Three challenges for international humanitarian law

Although it is the principal source of relevant rules in situations of armed con-

flict, international humanitarian law was not designed with private military contractors

in mind. Their evolution poses a number of challenges to the law. We will briefly con-

sider three of these challenges. The first challenge I would like to mention is of a gen-

eral nature: entrusting the conduct of war to private firms is, at best, dubious. Are

430 Cf. R. Uesseler, Krieg als Dienstleistung, Berlin, Ch. Links Verlag, 2006.

431 Cf. T. Pfanner, op. cit., supra note Error: Reference source not found, p. 158.

222

profit-seeking companies suited to manage situations in which conduct must be

guided by ethical considerations and by the imperatives of humanitarian and human

rights law?

In their activities and conduct companies are always guided by the profit motive. For

example, KBR has been accused of sending their logistics personnel into conflict zones

without proper training and without even the equipment to protect them from armed at-

tacks. Many PMC employees who were sent to Iraq believed that they had been hired

to do a “civilian” job. They were not, of course, and, tragically, some of them never re-

turned home. Other companies have been accused of employing “trigger-happy” mer-

cenaries and criminals who readily shoot at anything that they believe poses the slight-

est threat to the safety of those whom they guard. Since the unprovoked killings of 17

Iraqi civilians by Blackwater security contractors in a busy Baghdad square in Septem-

ber 2007, violations of humanitarian and human rights law by private contractors have

once again come to the fore. Profit seeking may incite these companies to do all sorts

of things, but respecting humanitarian and human rights law is clearly not among their

priorities.

The second challenge for international humanitarian law is a serious one: the lack of

accountability and responsibility. PMCs have neither status nor direct obligations un-

der humanitarian law432. To date, no international tribunal has been granted jurisdic-

tion over companies, a consequence of the traditional position that legal entities do

not have responsibilities under international law433. This is not to say that a company

could not be brought before a national court. However, the UN Working Group on the

use of mercenaries recently reported that “PMSCs are at present rarely held account-

able by effective oversight mechanisms at parliamentary levels, whether in the State

432 Cf. D. Thürer and M. MacLaren, “Military outsourcing as a case study in the accountability and responsibil -

ity of power”, in A. Reinisch and U. Kriebaum (eds), The Law of International Relations: Liber Amicorum

Hanspeter Neuhold, Utrecht, Eleven International Publishing, 2007, pp. 399 et seq.

433 Cf. E-C. Gillard, “Business goes to war: Private Military/Security Companies and International Humanit -

arian Law”, International Review of the Red Cross, Vol. 88, No. 863 (2006), p. 542.

223

that contracts them or in the countries where they operate.”434 With respect to repara-

tions, experts are undecided “whether private actors such as PMCs are under an ob-

ligation to make reparation where they commit IHL violations, or even that PMCs (…)

can commit IHL violations.”435 Who then, we may ask, is to provide compensation for

the damages inflicted? And who is responsible for violations of humanitarian law

committed by PMC staff? There is no doubt, of course, that employees of PMCs, like

other individuals, have obligations under international humanitarian law. They are li -

able to criminal prosecution for any serious violation committed by them. In reality,

however, proceedings against the staff of PMCs have been rare. In the Abu Ghraib

prison scandal, for example, 11 soldiers were convicted on charges related to de-

tainee abuse. However not a single person employed by CACI International, Inc. and

other PMCs, interrogators who were involved in the scandal, has ever been charged

with a crime, despite formal army investigative reports implicating several contractors

in serious crimes at Abu Ghraib436. This complete impunity with regard to violations of

humanitarian law and human rights law is proof that no political will exists at present

to bring private contractors to justice.

In principle, control of the private military industry can be achieved by various

mechanisms at various levels. One possibility is that such companies and their em-

ployees are submitted to national civil and criminal prosecution in the event of mis-

conduct. Upon exhaustion of local remedies, recourse possibilities to an international

434 Report of the Working Group on the Use of Mercenaries, UN Doc. A/HCR/7/7, 9 January 2008, para. 27.

435 University Centre for International Humanitarian Law, proceedings of the expert meeting on private military

contractors, held in Geneva from 29 to 30 August 2005. Available at: <www.adh-geneva.ch>, accessed Au-

gust 2010.

436 Human Rights First, Private Security Contractors at War: Ending the Culture of Impunity, New York/Wash-

ington D.C., 2008. Available at: <www.humanrightsfirst.org>, accessed August 2010.

224

dispute settlement mechanism to settle contractual or tortious disputes relating to

PMC activities could be established. Such a mechanism would be open to states and

victims of misconduct by PMCs, and it could take the form of an international arbitra-

tion centre (e.g. the Permanent Court of Arbitration) and of a standing or ad hoc inter-

national claims commission. In parallel to a two-level system of civil redress, the

ICC’s jurisdiction might be extended to legal persons to complement national criminal

punishment.437

The third challenge for international humanitarian law is the ambiguous legal

status of the staff of PMCs. Members of government armed forces fall within the legal

category of “combatants.” Their rights and obligations are specified in humanitarian

law. The legal status of employees of PMCs and their consequent rights and obliga-

tions are uncertain. Their activities are various: some provide food to soldiers, deliver

equipment to military camps or keep a close watch on civilian infrastructure; some

maintain weapons systems; and some directly participate in combat operations. In

addition, some private contractors dress like soldiers and carry their weapons openly

while others wear civilian clothes. Therefore, some contractors might fall within the

category of “combatants” and others might pass as “civilians.” Their status has to be

determined on a case-by-case basis. We may wonder whether this is viable, because

on the battlefield decisions have to be made quickly. Does not the presence of PMC

staff blur one of the basic principles of humanitarian law – the distinction between

437 Cf. D. Thürer and M. MacLaren, “Military outsourcing as a case study in the accountability and responsibil -

ity of power”, in D. Thürer, Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2,

Zurich/Baden-Baden, Dike/Nomos, 2009, pp. 791 et seq.

225

“combatants” and “civilians”438? If so, it is certainly no exaggeration to say that the ef-

fectiveness of humanitarian law is thereby impaired.

C. Reminding States of their obligations

If the “moralities of business firms [can not] be necessarily expected to accom-

modate such niceties as the laws of war”439 what could bring back into play this es-

sential body of law? How can the serious lack of accountability and responsibility in

privatized warfare be addressed? And what is the precise legal status of the staff of

PMCs. These questions were recently discussed in a number of fora. For instance,

the Swiss government and the International Committee of the Red Cross have

launched an initiative to clarify the obligations of States, PMCs and their staff under

international law. The resulting Montreux Document recalls the existing legal obliga-

tions of the relevant actors and partially debunks the common belief that PMCs oper-

ate in a legal vacuum440.

States bear the main responsibility for the respect of international humanit-

arian law. According to Article 1 common to the four Geneva Conventions they “un-

dertake to respect and to ensure respect for the present Convention in all circum-

stances”. States must protect everyone from those who undermine humanitarian law.

They are responsible for any failure to enforce humanitarian law because it has not

only an obligation to respect, but also an obligation to ensure that the law is respec-438 For a detailed analysis see E-C. Gillard, op. cit., supra note Error: Reference source not found, pp. 525 et

seq.

439 Cf. P.W. Singer, op. cit., supra note Error: Reference source not found.

440 See Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related

to Operations of Private Military and Security Companies During Armed Conflict, Montreux, 17 September

2008. Available at: <www.icrc.org> and <www.eda.admin.ch/psc>, accessed August 2010.

226

ted. States therefore have to regulate the activities of non-State actors in order to en-

sure that international humanitarian law is respected.

The Montreux Document, adopted at an international conference in autumn

2008, reaffirmed that delegating tasks to a PMC does not relieve a State of its re-

sponsibilities:

“Contracting States retain their obligations under international law, even if they contract

PMSCs to perform certain activities. If they are occupying powers, they have an obliga-

tion to take all measures in their power to restore, and ensure, as far as possible, pub-

lic order and safety, i.e. exercise vigilance in preventing violations of international hu-

manitarian law and human rights law.”441

The document goes on to say that contracting States, States on whose territory such

companies operate, States on whose territory they are registered, and all other

States “have an obligation, within their power, to ensure respect for international hu-

manitarian law by PMSCs”442. Contracting States, more precisely, have an obligation

to:

“a) ensure that PMSCs that they contract and their personnel are aware of their obliga-

tions and trained accordingly;

b) not encourage or assist in, and take appropriate measures to prevent, any violations

of international humanitarian law by personnel of PMSCs;

c) take measures to suppress violations of international humanitarian law committed by

the personnel of PMSCs through appropriate means, such as military regulations, ad-

ministrative orders and other regulatory measures as well as administrative, disciplin-

ary or judicial sanctions, as appropriate.”443

441 Montreux Document, supra note Error: Reference source not found, para. 1. Cf. J. Cockayne, „Regulating

Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the

Montreux Document”, Journal of Conflict and Security Law, Vol. 13 (2009), pp. 401-428.

442 Ibid., para. 3, para. 9, para. 14, para, 18.

443 Ibid., para. 3; territorial States, home States and all other States also have partly the same or similar obliga-

tions according to paras 9, 14 and 18.

227

Furthermore, they have an obligation:

“to enact any legislation necessary to provide effective penal sanctions for persons

committing, or ordering to be committed, grave breaches of the Geneva Conventions

and, where applicable, Additional Protocol I, and have an obligation to search for per-

sons alleged to have committed, or to have ordered to be committed, such grave

breaches and bring such persons, regardless of their nationality, before their own

courts.”444

In addition to an outline of the existing international and national legal obligations of

States, PMCs and their personnel, the Montreux Document includes some 70 recom-

mendations, derived from good State practice and designed to assist States in com-

plying with their international legal obligations.

Legal scholars, governments and NGO representatives have also proposed a

number of measures to close the existing “accountability gap”. Describing all of them

in detail would obviously exceed the space available here. I shall mention just a few

examples to give a rough idea of the direction taken by them:

allocate licences to PMCs only under certain conditions, including vetting and

screening of personnel, adequate training of staff, and transparency with re-

spect to services offered;

put in place adequate accountability mechanisms at the national level;

set up structures of international supervision in order to improve compliance

with international law, particularly international humanitarian law445.

444 Ibid., para. 5; territorial States, home States and all other States have the same obligations according to para.

11, 16 and 20.

445 Cf. D. Thürer and M. MacLaren, op. cit., supra note Error: Reference source not found.

228

Other initiatives call for the industry to regulate itself446. The idea is to develop an in-

ternational code of conduct for PMSCs based on international humanitarian law and

human rights law. Military companies would willingly bind themselves to self-imposed

corporate obligations. In order to make the normative standards effective, monitoring

and accountability mechanisms are necessary, to ensure implementation of and

compliance with the obligations that have been assumed. The purpose of such a

code of conduct is to make certain that companies comply with humanitarian law and

human rights law. Achieving broad acceptance among PMSCs of an ambitious code

of conduct will not be an easy task. Despite all the honourable efforts of private self-

regulation, we must keep in mind that States bear the main responsibility for the re-

spect of international humanitarian law. We will tackle the issues of responsibility and

accountability in a more comprehensive way in the concluding sub-chapter.

III. War and natural resources

A. The resource curse

After the end of the Cold War, support from the two superpowers for their al-

lies dwindled, and it became increasingly obvious that a number of local wars in Asia

and Africa were being financed by the extraction of natural resources. Scholars who

study the economic dimensions of modern civil wars point out that no conflict can be

reduced to a simple clash of economic interests447. The causes of war are usually

complex. And most of the evidence suggests that the civil wars of the 1990s in Afgh-

446 See N. Rosemann, Code of conduct: Tool for Self-Regulation for Private Military and Security companies,

Geneva Centre for the Democratic Control of Armed Forces (DCAF), Occasional Paper No. 15 (2008).

447 F. Jean and J.-C. Rufin, Ökonomie der Bürgerkriege, Hamburg, Hamburger Edition, 1999, p. 9.

229

anistan, Angola, Burma, Cambodia and Liberia, were not caused by the simple pres-

ence of natural resources and adverse economic interests. Rather, rebel groups be-

came dependent on ressource sales once war had started, since in war-torn coun-

tries they had no alternative to raise money.448 However, the availability of commodit-

ies like precious stones, drugs and timber seemed to make possible conflict in the

first place and then had a prolonging effect on its duration449. Revenues obtained

from the sale of natural resources allowed warring parties to buy weapons and pay

soldiers in order to sustain wars. Interestingly, flowing revenues sometimes seem to

change motives overtime. An analysis of the civil war in Sierra Leone, for example,

claims that the Revolutionary United Front at the beginning was “a loosely organized

contingent of dissidents based on a vague desire to replace the government in Free-

town with a more egalitarian alternative, but it evolved into a less ideological and

more wealth-seeking movement.”450 When actors are actually profiting from war the

task of ending violence becomes a difficult one. The profitability of resource looting

can be devastating for the peace process, for war profiteers have little or no interest

in seeking peace.451 Economic agendas then appear to be central to understanding

why civil wars get going452.

448 M.L. Ross, “What Do We Know about Natural Resources and Civil War?” Journal of Peace Research, Vol.

41, No. 3 (2004), p. 345; See also M.L. Ross, “How Does Natural Resource Wealth Influence Civil War?”

International Organization, Vol. 58 (2004), pp. 35 et seq.

449 M.L. Ross, op. cit, supra note Error: Reference source not found, pp. 337 et seq.

450 M. Silberfein, “The Geopolitics of Conflict and Diamonds in Sierra Leone”, in P. Le Billon (ed.), The Geo-

politics of Resource Wars, New York, Frank Cass, 2005, p. 213.

451 P. Le Billon, Fuelling War: Natural Resources and Armed Conflict, Oxon, Routledge, 2005.

452 P. Collier, Doing well out of war, Geneva, The World Bank, 1999, p. 1. The paper is available at: <www.-

worldbank.org>, accessed August 2010.

230

B. Controlling access to international markets – Sierra Leone as case in point

As students of international humanitarian law we may wonder why we should

care about the link between war and the exploitation of and trade in natural re-

sources. Here is something of an answer. Resource extraction allowed for financing

some of the most brutal civil wars of recent times, wars that were notorious for dis-

respect for international humanitarian law. But war economies are rarely self-sustain-

ing in the long run. Rebel groups and government forces seldom themselves produce

the goods they need. That is why warring parties are dependent on having access to

international markets for food and arms and other essential commodities. In ex-

change they export natural resources. This dependence of warring parties on the ex-

change of goods gives the international community an opportunity to impinge upon

the course of conflict. It may intervene by restricting trade in the natural resources

being exploited, thereby depriving belligerents of the means necessary to purchase

armaments.

However, undermining the economic basis of a conflict often proves difficult in

practice. The following analysis of the civil war in Sierra Leone may be instructive:

“During the retreat phase, the insurgents remained hidden, often in dense brush, like

viruses waiting to break out again once resources had been traded for arms and fight-

ing forces had been replenished. These forces could never have expanded following

the contraction of their territory without links to international business and criminal or

terrorist elements, as well as government entities willing to break sanctions in order to

further their own geopolitical and economic goals.”453

After the numerous resource-based wars of the 1990s a number of interna-

tional measures were proposed. Philippe Le Billon is of the view that “even if conflict

resources come under greater regulatory pressure, it is likely that criminal networks

453 M. Silberfein, op. cit., supra note Error: Reference source not found, p. 237.

231

and unscrupulous businesses will pursue trading, especially those already involved in

arms trafficking.”454 He makes the following recommendations:

“In addressing this issue more effectively, the main priorities are greater awareness

and tighter controls on resource trade, earlier and stronger imposition of targeted sanc-

tions, and peacekeeping mandates allowing for the military capture and supervision of

resource production sites. International instruments to prevent or terminate conflicts fin-

anced by natural resource exploitation would move from ‘shaming’ international actors

to formalizing punishments and sanctions against individuals as well as corporations.

During peace processes, the international community should follow a principle of ‘eco-

nomic demobilization’ limiting the risk of renewed conflict and building the resource-

governance capacity of new institutions.”455

The link between access to a wealth of natural resources and respect for hu-

manitarian law seems to be ambiguous. Desperate belligerents without access to

natural resources or international markets, for example, may intensify pressure on

the civilian population. If the international community does take any measures to

eliminate these effects – and I believe that it should do so more often than it now

does – it has to make sure that these measures have no adverse consequences with

regard to respect for humanitarian law456.

A well-known example of international intervention was the attempt to prohibit

trade in “conflict diamonds”. “Conflict diamonds” or “blood diamonds”, are diamonds

extracted and sold by a rebel group in order to finance a conflict. During the civil war

in Sierra Leone, a group of insurgents, the Revolutionary United Front (RUF), largely

454 P. Le Billon, op. cit, supra note Error: Reference source not found, p. 82.

455 Ibid., p. 82.

456 Cf. C. Clapham, Sierra Leone: The political economy of internal conflict, Working Paper 20, The Hague,

Clingendael Institute, 2003, p. 18. See also, P. Le Billon, op. cit., supra note Error: Reference source not

found, p. 45.

232

funded the fighting by selling diamonds extracted from areas under their control. The

country “became a site for a protracted conflict because it possessed sources of

wealth that could be diverted into the hands of an organized rebellion”457: a vicious

cycle was created in which plundered resources were exchanged for weapons, which

then secured access to the country’s wealth.

Civil society proved to be crucial in tackling the issue and in advancing the

claims of international law. Recognizing the role of natural resources in fuelling civil

wars, international NGOs campaigned to end the trade in conflict diamonds458: a

series of international negotiations followed, involving the diamond industry, govern-

ments and NGOs. The resulting diamond certification scheme came to be known as

the Kimberley Process. Its aim was to control the flow of diamonds throughout the

world, from source areas to processing centres, and to prevent conflict diamonds

from entering the legal market. Under the terms of the Process, participating govern-

ments are permitted to trade only with one another; they are also required to pass

laws and set up regulatory systems for the import and export of rough diamonds.

Despite promising commitments made by the diamond industry, the Kimberley

Process has not yet achieved its objective. Diamonds from conflict zones are still en-

tering the legal market. Regarding the unlawful trade in conflict diamonds, it has been

claimed by one NGO that “many illicit traders are known, but the industry is still

largely secretive and unwilling to tackle the problem by working more proactively with

law enforcement agencies. The diamond industry has failed to honour its commit-

457 M. Silberfein, op. cit., supra note Error: Reference source not found, p. 213.

458 One of the leading organizations in this regard is Global Witness, a London-based NGO that seeks to break

the links between the exploitation of natural resources and conflict and corruption. For further details, see

<www.globalwitness.org>, accessed August 2010.

233

ments to support the Kimberley Process by not policing itself effectively while govern-

ments have failed to step up to the line and hold the industry accountable for this.”459

As long as governments lack the will or the ability to hold private corporations ac-

countable for their actions, and as long as there is no direct accountability under in -

ternational law, the international community is powerless to make the diamond in-

dustry abide by the law.

Even more dispiriting is the fact that the diamond trade is only one aspect of a

wider practice of destructive trade in conflict resources that remains largely ignored

by the international community. Timber, gold and minerals are other goods that regu-

larly find their way to international markets. If the international community is genu-

inely interested in ensuring respect for international humanitarian law it will have to

systematically deal with the deleterious trade in conflict resources.

IV. The arms trade

In Chapter II on the constraints of war, we discussed certain types of weapon

and the problems they pose for international humanitarian law. In this sub-chapter,

the focus will be on the economic and strategic interests in conventional arms pro-

duction and trade and in the challenges these issues bear for international humanit-

arian law.

459 Statement by Global Witness on whether the Kimberley Process was working. Ibid.

234

A. Dissemination of small arms and the consequences for humanitarian

work 460

In a paper published in 1987, Christopher Gregory Weeramantry461 wrote that:

“as the armaments industry keeps tightening its global stranglehold, international law-

yers and human rights scholars should not resign themselves to feelings of impotence

but should actively examine every concept and procedure afforded by their disciplines

to counter it, before it is too late. There is a real danger that present trends will harden

into a permanent way of life, if indeed they have not already done so.”462

His article contained the following warning: “If there is an international duty lying upon

all States to act constructively for the preservation of global peace, this duty must be-

gin at the level of the arms trade, for action at a later stage savours very much of

closing the stable door after the horse has bolted.” And Judge Weeramantry also re-

minded his readers that:

“The mounting toll of dead and the refugee camps overflowing with innocent non-com-

batants who have lost their all in a tussle to which they were not parties, are mute testi-

mony to all that follows from the denial of the right to life. The arms trade, by making

freely available the instruments of death, facilitates this process and magnifies its cost

in human suffering in the same way as the free sale of weapons in a national context

heightens the level of internal crime.”463

Today, 700 million small arms and light weapons are believed to be dispersed

throughout the world. These weapons are the primary source of violations of interna-

tional humanitarian law and human rights law – committed by States, rebels, war-

lords, terrorists and criminals. The illicit traffic of these weapons and their unrestricted

460 Graduate Institute of International Studies, Small Arms Survey 2003: Development Denied, Oxford, Oxford

University Press, pp. 125 et seq.

461 Weeramantry was Judge of the ICJ from 1991 to 2000, and Vice-President of the Court from 1997 to 2000

462 C.G. Weeramantry, “Traffic in armaments: A blind spot in human rights and international law?” Develop-

ment Dialogue, Vol 2 (1987), pp. 68 et seq.

463 Ibid., pp. 68 et seq.

235

international trade and transfer by States is one of the causes of the roughly half a

million victims they claim every year.464 This situation has been described as “one of

the most gaping, if hidden, wounds that afflicts the world today.”465 And indeed, while

international treaties have been concluded in order to outlaw the production, stockpil-

ing, transfer and use of certain types of weapon, the production and transfer of small

arms and lights weapons remains largely unrestricted despite their shocking destruct-

iveness in contemporary times. It is estimated that they are instrumental in the

deaths of 500,000 men, women and children every year - 300,000 of them during

armed conflicts, the rest in “times of peace”. Today, some consider them the real

weapons of mass destruction. It is morally reprehensible when all kind of actors

seem to be able to obtain almost all the arms they wish to possess for any imagin-

able purpose. To replenish their supplies of weapons and munitions, these actors

can rely on an international network of arms producers, brokering agents, arms deal-

ers and transportation companies that are at times prepared to go so far as to flout

embargos466.

B. Economic and strategic interests

Though public awareness is growing, economic and strategic interests seem

to have prevailed so far over moral and humanitarian considerations. In a way, this

preference is understandable. Even in minor arms exporting countries, the trade is

464 Z. Yihdego, The Arms Trade and International Law, Oxford/Portland, Hart Publishing, 2007; see also M.

Bourne, Arming Conflict: The Proliferation of Small Arms, New York, Palgrave Macmillan, 2007.

465 Pontifical Council for Justice and Peace, The International Arms Trade: An Ethical Reflection, Vatican City,

Libreria Editrice Vaticana, 1994.

466 Amnesty International, Dead on Time: Arms Transportation, Brokering and the Threat to Human Rights,

London, 2006. Available at: <www.amnesty.org>, accessed August 2010.

236

worth hundreds of millions of dollars and thousands of jobs depend on the industry467.

The financial value of the international arms trade in 2006 was estimated at 45.6 bil-

lion dollars. The United States heads the list of arms exporters with an estimated ex-

port value of 14 billion dollars468. Hundred of thousands of jobs depend on the US

arms industry. Like many other industries, the arms industry has not been immune to

the forces of globalization. Economic pressure and strategic interests have contrib-

uted to the spread of arms and of the production facilities for manufacturing them.

The following passage provides an apt description of the process:

“Faced with falling domestic markets [after the end of the Cold War], arms manufactur-

ers started to seek solutions through mergers, consolidation of core business activities,

and a focus on exporting to foreign markets, often regardless of the ethical con-

sequences. Governments favoured these policies in order to maintain the viability of

military production lines and lower the cost of domestic arms procurements (the higher

the exports of military products, the lower the cost per unit produced). Other methods

used by arms manufacturers to adapt to the post-Cold War conditions included the es-

tablishment of joint ventures and licensed production facilities in countries with low op-

erational and labour costs. As a result, however, the number of arms manufacturing

countries grew and has expanded to include the more developed of the ‘developing

countries,’ many of which lack the political will, legal frameworks and enforcement ca-

pacity to effectively control arms transfers.”469

467 In Switzerland, for example, peace activists used their political rights to bring about a ban on arms exports

and arms transits by way of amending the Swiss constitution. They were supported by left-wing parties who

invoked ethical and humanitarian arguments and morally condemned Swiss participation in the global arma-

ments trade. Moderates and right-wing parties argued that arms exports are economically significant. They

also believe that the Swiss arms industry would not survive without overseas sales. A ban on exports would

make the country dependent on imports, which, from a security policy viewpoint, would be troubling. Cf. N.

Nuspliger, “Einseitiger Kampf um das Kriegsmaterial”, Neue Zürcher Zeitung, 11 March 2009. On 29

November 2009, 68.2% of the Swiss population voted against such a ban.

468 P. Holtom, M. Bromley and P.D. Wezeman, “International Arms Transfers”, in Stockholm International

Peace Research Institute (ed.), SIPRI Yearbook 2008: Armaments, Disarmament and International Security,

Oxford, Oxford University Press, 2008, pp. 295 et seq.

469 Amnesty International, op. cit., supra note Error: Reference source not found, p. 5.

237

The countries that sell arms may be under considerable economic pressure to

do so. On the other hand, the share of the international arms trade in overall world

trade is relatively low, approximately 0.4 per cent. And arms production and the arms

trade seem to be controlled by a handful of countries. Five countries are responsible

for eighty per cent of all arms transfers: the US, Russia, Germany, France and the

UK470. It has been estimated that the 100 largest armament firms account for more

than three-quarters of all global arms production471. In 2006, their sales amounted to

315 billion dollars. The five largest firms accounted for roughly 40% per cent of the

combined sales of the top 100 firms. These figures reveal that the bulk of arms pro -

duction is concentrated within a few firms and that arms transfers, for the most part,

originate in a handful of countries. Should genuine political will somehow materialize,

the problem of unrestricted international arms transfers would seem rather more sol-

uble than it does now.

C. Arms trade treaty

In Chapter II on the constraints of war472 we discussed the evolution of interna-

tional humanitarian law, which now bans a number of weapons that are inconsistent

with its basic principles. We learnt that the development, production and stockpiling

of biological and chemical weapons have been prohibited. Successes of this kind

have not been restricted to weapons of mass destruction. Our views on the lawful-470 P. Holtom, M. Bromley and P.D. Wezeman, op. cit., supra note Error: Reference source not found, p. 293.

471 S.P.-P. Freeman and E. Sköns, “Arms Production”, in Stockholm International Peace Research Institute

(ed.), SIPRI Yearbook 2008: Armaments, Disarmament and International Security, Oxford, Oxford Univer-

sity Press, 2008, p. 255. Note that Chinese arms-producing companies are not included in the figures as in-

formation on them is not available.

472 Cf. Chapter Two, II. B. Banning weapons.

238

ness of certain weapons have changed. Some conventional weapons that had been

in use for many decades are now considered to be incompatible with the principles of

humanitarian law. Such was the case with anti-personnel landmines. Much has been

achieved. Still more may be achievable.

Efforts are now being made at the international level to restrict the spread of

small arms and light weapons. The international community is now addressing, com-

prehensively, the unrestricted flow of conventional arms. What all these efforts have

in common is that human rights and humanitarian concerns take centre stage. Prac-

tices that have been tolerated for many decades may become unacceptable. Aware-

ness of human rights and humanitarian standards, and of illegal or morally question-

able trade and other practices, is crucial. More and more, civil society claims to have

a say in these issues. In fact, it is often civil society activity that initiates and propels

international negotiations. In 2006, for example, a couple of years after a number of

well-known international NGOs had launched a campaign for the regulation of inter-

national transfers of conventional arms473, a solid majority of governments decided to

start work on the elaboration of an international arms trade treaty474. And in 2008, the

international community reiterated its determination and mandated the UN to estab-

lish a working group that would develop a legally binding arms trade treaty establish-

ing common international standards for the import, export and transfer of all conven-

tional arms. It was reported that “the vote was particularly strong in Africa, South and

473 See, e.g., the Control Arms campaign jointly run by Amnesty International, International Action Network on

Small Arms and Oxfam International. It calls for “a global, legally binding Arms Trade Treaty to stop

weapons being used to fuel conflict, poverty and human rights abuses.” For more information, see: <www.-

controlarms.org>, accessed August 2010.

474 UN General Assembly Resolution 61/89, 18 December 2006, UN Doc. A/RES/61/69.

239

Central America and Europe indicating strong demand for arms control both from

countries severely affected by armed violence and from major exporters.”475

Why is a future arms trade treaty relevant for international humanitarian law?

What is the link between regulating the arms trade and the humanitarian law regime?

It is obvious that the easy availability of weapons, and their misuse, may conflict with

the principles and rules of humanitarian law. But does the law say anything about the

arms trade? Is the problem of unrestricted trade in conventional weapons not better

understood within the context of the international arms control regime?

For a long time, in fact for most of its existence, humanitarian law has been a

rather isolated regime, largely detached from other international legal regimes476.

Despite its gradual evolution it remained largely self-contained. In the first two dec-

ades after the end of World War II, humanitarian law was not directly associated with

the most obvious of its relatives: international human rights law. It was only in the late

1960s – by which time the promise “to save succeeding generations from the

scourge of war”477 was admitted to be unattainable in the near future – that human

rights and humanitarian law began to be regarded as complementary and mutually

475 Amnesty International, “Landslide UN vote in favour of arms trade treaty”, press release, issued on 31 Octo -

ber 2008.

476 Cf. International Institute of Humanitarian Law, “International humanitarian law and other legal regimes: In-

terplay in situations of violence,” Proceedings of the 27th Round Table, Sanremo, 4-6 September 2003.

477 Cf. Preamble to the Charter of the United Nations.

240

reinforcing478. The international community realized that the two regimes, once separ-

ate, had a common purpose: protecting the lives and dignity of people everywhere.

In a world that is becoming closely interconnected, global challenges require

global responses. In times of rapidly growing international and transnational interac-

tion, international law is probably one of the most dynamic branches of law. The in -

ternational legal order has been, so far, a fragmented system. We all know that rights

evolve from wrongs. It should surprise no one that separate and insulated legal re-

gimes are created on particular occasions, each regulating a particular problem. In-

ternational law is not yet an integral whole. As economic production and distribution

come to be organized ever more on a global scale, international law will undoubtedly

develop further; and there will be a consolidation of various separate legal regimes.

D. Existing State obligations

A futur arms trade treaty would be relevant for humanitarian law, and vice

versa. The decision to ban certain weapons is based on the principles of humanit-

arian law; similarly, respect for humanitarian law must become one of the funda-

mental criteria by which decisions related to the transfer of conventional arms are as-

sessed. The ICRC has championed this view since 1999. Under Article 1 common to

the Geneva Conventions of 1949, States

478 The International Conference on Human Rights held in Teheran in 1968, to review the progress made in the

twenty years since the adoption of the Universal Declaration of Human Rights, recognized that the UN

Charter’s prohibition of the threat or use of force in international relations had not, since its adoption, been

fully implemented. The UN had been reluctant to address issues of international humanitarian law for more

than two decades: the UN General Assembly Resolution “Human Rights in Armed Conflicts” put an end to

that.

241

“have an obligation to respect and ensure respect for international humanitarian law.

To ensure that violations of international humanitarian law are not facilitated by unregu-

lated access to arms and ammunition, arms transfer decisions should include a consid-

eration of whether the recipient is likely to respect this law.”479

The ICRC proposed that

“all national and international standards for arms transfers should include a require-

ment to assess the recipient’s likely respect for international humanitarian law and to

not authorize transfers if there is a clear risk that the arms will be used to commit seri-

ous violations of this law.”480

A potential international arms trade treaty must be a substantiation of the already ex-

isting State’s obligation to ensure respect. Therefore, it must contain clear criteria by

which the legality of arms transfers can be assessed: for instance, the recipient’s re-

cord of respecting humanitarian law and of punishing those who have violated the

law; the recipient’s formal commitment to apply the rules of war; his current ability

and willingness to suppress violations; and whether the armed forces of that country

are being trained in the application of humanitarian law481. A solid majority of States

have repeatedly expressed the view that respect for humanitarian law should be-

come a fundamental criterion for assessing transactions in the arms trade. If interna-

tional civil society and like-minded States keep up the pressure, there is a chance

that States that host arms manufacturers and authorize the export of arms will live up

to their responsibilities, control their exports more strictly and prohibit and prevent the

transfer of arms to recipients who cannot show that they are able or willing to respect

humanitarian law. An international arms trade treaty based on existing humanitarian

479 International Committee of the Red Cross, Arms Transfer Decisions: Applying International Humanitarian

Law Criteria, Geneva, ICRC, 2007.

480 Ibid.

481 For specific recommendations regarding indicators for assessing whether the arms or military equipment to

be transferred will be used to commit serious violations of international humanitarian law, see ibid.

242

law and human rights principles must “prevent arms transfers into conflict zones

where they are likely to be used to facilitate serious violations of those laws.”482 The

absence of such an instrument at present does not mean that States have no obliga-

tions under existing international law.483 From the positive obligation to ensure re-

spect for international humanitarian law it follows that States are limited in their free-

dom to transfer conventional arms484. However, the elaboration of an arms trade

treaty could clarify existing uncertainties and draw attention to the fact that arms

transfers are all too often in violation of existing obligations under international hu-

manitarian law.

In the next sub-chapter, we will discuss the question of responsibilities under

humanitarian law in more detail, and whether a new approach to international law

might be helpful in addressing some of the problems discussed above.

V. Responsibilities under international humanitarian law – A promising

new approach

A. Adaptability of international humanitarian law

482 Control Arms Campaign, Arms without Borders: Why a Globalized Trade Needs Global Controls, 2006.

Available at: <www.controlarms.org>, accessed August 2010.

483 cf. A. Boivin, “Complicity and Beyond: International Law and the Transfer of Small Arms and Light

Weapons”, International Review of the Red Cross, Vol. 87, No. 859 (2005), p. 496.

484 Cf. M. Brehm, “The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights

Law”, Journal of Conflict and Security Law, Vol. 12, No. 3 (2008).

243

Whenever new issues arise and new actors emerge, one may legitimately

raise questions about the adequacy of the existing body of pertinent law. On several

occasions in the past, the international community has proved willing and able to ad-

apt existing bodies of law and develop new sets of laws. International humanitarian

law is no exception to this process.

From the nineteenth century on, modern international humanitarian law has

been elaborated, first and foremost, to protect the victims of war and to regulate the

conduct of hostilities between conventional armies. Since its origins this body of law

has undergone major evolutionary changes. This has not been an orderly or steady

process. Usually, great leaps in the law were made possible only by calamitous

events. We have seen that the foundation of the International Committee of the Red

Cross and the elaboration of the first international humanitarian law treaty were in-

spired by the bloody battle of Solferino and the terrible suffering that it caused485. And

the adoption of the four Geneva Conventions of 1949 would hardly have been pos-

sible without the catastrophic events of World War II. One is forced to recognize that.

Every calamity may be regarded as an opportunity. In the 1990s, a time when many

believed that peace had finally got the better of war, indescribable atrocities were

committed during civil wars in Africa, Asia and South-eastern Europe. Memories of

these events are still very vivid. This flagrant disregard for the law catapulted the is-

sue, of human rights violations and violations of international humanitarian law, to the

top of the international political agenda. Ad hoc institutions were created and many of

those who may have believed that they would enjoy immunity suddenly found them-

485 Quite often a “shock of public conscience” (Durkheim spoke of "colère publique“) was at the origin of legal

program.

244

selves facing criminal prosecution. We have discussed the issue in Chapter III in

some detail.

At first sight, it may seem odd that private military companies, the exploitation

of natural resources and trade in conventional arms are being discussed in one

chapter of a work on international humanitarian law. I have tried to show that they are

linked in several ways to one another. So far, we have discussed at least four similar-

ities among them. First, they may all be understood as manifestations of a new type

of war. Second, they all pose specific challenges to humanitarian law. Third, if we

want to tackle them we will have to look at the attendant economic aspects. And

fourth, their emergence has been facilitated by the process of economic globaliza-

tion. There is at least one more similarity: we may call it the responsibility question or,

perhaps more precisely, the lack-of-responsibility challenge. For instance, who is re-

sponsible for the crime of torture when it is committed by someone employed by a

PMC? In the case of the Abu Ghraib prison scandal neither a single private con-

tractor nor any of their employers was held accountable in any meaningful way. In

fact, nobody seemed to be accountable for what had happened. Is a transnational

company trading in diamonds or timber accountable for violations of humanitarian

law if its activities make possible a particularly brutal war? And who is responsible

under international law for violations of the laws of war if a multinational company de-

livers arms to a rebel group notorious for its disregard for humanitarian law? Is it the

State hosting the rebel group? Is it the rebel group itself? Are the rebels individually

accountable for their conduct? What is the responsibility of the State that failed to

prevent the transfer of arms to this rebel group? And finally, what is the responsibility

of the company that produced or delivered the arms without which large-scale viola-

245

tions of the law could not have been committed? There is no easy answer to these

questions.

I argue that a “multi-responsibility-approach” is the best way to address the

challenges posed to humanitarian law. In this concluding section we will discuss how

the questions raised above can be answered in a way that is at least somewhat satis-

factory. I will not review all the questions. We have already discussed individual crim-

inal responsibility in Chapter III. At this point, I will bring up three more issues that

are, in my view, of particular relevance to contemporary wars: the primary responsib-

ility of each State to respect and ensure respect for IHL, corporate responsibility un-

der international law, and the international community’s “responsibility to protect.”

B. State responsibility to ensure respect for international humanitarian law

In 2004, in his introductory statement to a panel discussion, a member of the

ICRC said that very few delegates of the ICRC remained in Iraq, mainly for security

reasons. They had directly been threatened by different parties to the conflict . In

some other places, the situation was so chaotic that the ICRC simply could not con-

tinue to do its work there. There are wars, this panelist said, so suffused with hatred

that humanitarian aid, even when directed towards children and women, was no

longer tolerated. He concluded his statement like this:

“le droit humanitaire ne peut pas tout résoudre. Il a ses limites. Il n’est plus de grande

utilité si le socle sur lequel il est construit est remis en cause, si ses principes fonda-

mentaux sont bafoués. Je pense que tout doit être mis en œuvre pour changer cette si-

246

tuation et qu’il faut le dire en particulier aux Etats qui sont les premiers responsables

de cette situation.“486

States do indeed bear the main responsibility. They are still the main actors in the in-

ternational system. They negotiated and signed the international conventions. Article

1 common to the four Geneva Conventions unambiguously declares that:

“The High Contracting Parties undertake to respect and to ensure respect for the

present Convention in all circumstances.”

The responsibility for abiding by the provisions of humanitarian law rests primarily

with States. Proponents of this approach take the view that governments must pro-

tect everyone from those who undermine humanitarian law. Put a little differently, the

State is responsible for any failure to enforce humanitarian law because it has not

only an obligation to respect, but also an obligation to ensure that the law is respec-

ted.

In this conventional, State-centred view of international law, the responsibility

for enforcing and ensuring enforcement of humanitarian law rests solely on States.

The advantage of this approach is its lack of ambiguity. With regard to the challenges

thrown up by ‘new wars,’ this means that States have an obligation to ensure respect

for international humanitarian law. They have to regulate the activities of non-State

actors such as private military companies, arms manufacturers and all those who ex-

ploit or trade in natural resources if such activities jeopardise respect for international

humanitarian law. When governments have the power and the will to ensure respect

for humanitarian law, the State-centred approach is certainly adequate. But if States

are the only relevant actors, ensuring compliance with humanitarian law depends en-

486 Y. Sandoz, “Improving Compliance with International Humanitarian Law”, Proceedings of the Bruges Col-

loquium, September 11-12, 2003.

247

tirely on their ability and willingness to abide by their obligations; on this ability of

States, then, rests the future of international humanitarian law.

C. Corporate responsibility under international law

The conventional approach to international law has some obvious and signific-

ant disadvantages. What if a State is unwilling to enforce humanitarian law or to pun-

ish those who violate it? What if a State is too weak to abide by its obligation to en-

sure respect for humanitarian law? Which is all too often the case in modern wars. A

State so weak would also be incapable of enforcing humanitarian law. Who, then,

steps in to ensure respect for the law? In recent years, another approach has gained

currency:

If “governments are increasingly irrelevant and powerless (…) attention should focus

on other actors such as transnational corporations and international institutions (…) Ac-

cording to this approach, we should face up to the fact that, in a globalized economy,

the trading which accompanies economic exploitation or civil wars is no longer in the

hands of governments (even if they were minded to seriously tackle these issues). New

ways of understanding transnational justice and global law are needed to respond to

globalization.”487

Andrew Clapham, a proponent of this approach, is determined “to go beyond the tra-

ditional, narrow, State-focused approach” and argues that “some of the obligations

found in public international law, and traditionally only applied to States, also apply to

487 A. Clapham, Human Rights Obligations of Non-State Actors, Oxford, Oxford University Press, 2006, pp. 25

et seq. See also, P. Alston, „The ‚Not-a-Cat’ Syndrome: Can the International Human Rights Regime Acco -

modate Non-State Actors?“, in P. Alston (ed.), Non-State Actors and Human Rights, Oxford, Oxford Univer-

sity Press, 2005, pp. 3 et seq.; B. Hamm, “Übernahme menschenrechtlicher Verantwortung durch die

Privatwirtschaft", in Deutsches Institut für Menschenrechte (ed.), Jahrbuch Menschenrechte 2007 – Privat

oder Staat?, Frankfurt am Main, Suhrkamp Verlag, 2006.

248

non-State actors.”488 International humanitarian law can be regarded as a precursor

to this approach. Under this body of law, obligations have been extended to all

groups - State or non-State - taking part in hostilities, regardless of whether they are

“subjects” under international law. The main criterion is the participation of an actor in

an armed conflict. That is why non-State actors such as de facto regimes, belligerent

and rebel groups, national liberation movements and UN peacekeeping forces are

also bound by humanitarian law, despite their not having taken part in the law-making

process. In other words, it is not legal status, but actual participation in an armed

conflict that obliges an actor to respect humanitarian law489. The same rationale could

probably be applied to other situations and to actors of a different kind. Transnational

companies, according to the prevailing doctrine, are not subjects of international law

and therefore have no direct obligations under humanitarian law. Whether these en-

tities should, in fact, be considered new subjects of international law is now the sub-

ject of debate. I suggest that we take Clapham’s invitation to “think responsibly about

the subject of subjects” seriously and depart from some of the traditional assump-

tions of and about international law: “If individuals are to be deemed subjects of inter -

national law with international legal personality, why not non-governmental organiza-

tions? And if we add non-governmental organizations, why not transnational corpora-

tions?”490

488 A. Clapham, op. cit., supra note Error: Reference source not found, p. 28. See also, A. Clapham, “Extending

international criminal law beyond the individual to corporations and armed opposition groups”, Journal of

International Criminal Justice, Vol. 6, No. 5 (2008).

489 Cf. Institute of International Law, “The Application of International Humanitarian Law and Fundamental

Human Rights in Armed Conflicts in which Non-State Entities are Parties”, Resolution adopted at its session

in Berlin from 17-20 August 1999. See also, R. Kolb and R. Hyde, An Introduction to the International Law

of Armed Conflict, Oxford, Hart Publishing, 2008, pp. 86 et seq.

490 A. Clapham, op. cit., supra note Error: Reference source not found, p. 61.

249

The issues discussed in this chapter raise several questions. Should not eco-

nomic actors, whether they are private military companies, arms producers, corpora-

tions exploiting natural resources or diamond buyers have responsibilities under in-

ternational law in general, and under IHL in particular491? The process of globalization

has dramatically increased the economic power of transnational corporations and

their influence on politics. All too often, their activities have detrimental effects on a

particular conflict zone and its inhabitants. Do we really have to rely on domestic reg-

ulation and domestic control of these companies? What if domestic regulation is non-

existent or inadequate, or enforcement ineffectual? In that case, should we have to

rely on voluntary codes of conduct492 – the option preferred by the corporations them-

selves – and extra-legal mechanisms such as civil society pressure and ethical con-

sumer behaviour? Or should we, after all, hold these companies accountable under

international law for the unacceptable consequences of their actions?

The chief prosecutor of the International Criminal Court, Louis Moreno-

Ocampo, considers that businessmen and foreign companies, who knowingly deliver

weapons or give financial support to war criminals in exchange for natural resources

such as diamonds or gold are also accountable under international law, even if they

491 Cf. D. Thürer and M. MacLaren, op. cit., supra note Error: Reference source not found. See also D. Thürer,

“Globalisation of the Economy, Rule of Law and Human Rights”, Paper delivered while a Distinguished Vis-

itor at the University of Hong Kong, December 2000.

492 The UN Global Compact and the Organisation for Economic Cooperation and Development Guidelines for

Multinational Enterprises are two well-known international instruments that belong to the category of ‘soft

law.’ They are rather weak instruments for protecting human rights, as they do not create any legally binding

obligations for transnational corporations.

250

were not directly participating in the commission of the crimes493. As accomplices,

they must be held accountable. When the Rome Statute was being negotiated, cor-

porate criminal accountability was indeed open to debate. However, the final version

of the Statute, which has been in force since 2002, limited the jurisdiction of the Court

to individuals: it has no jurisdiction over legal entities. Therefore, the only way to cir-

cumvent gaps in accountability is to make senior staff individually accountable for the

activities of their companies. The Rome Statute offers several pertinent provisions to

this end. Article 25(3)(c), which seems to me the most interesting, states: “a person

shall be criminally responsible and liable for punishment for a crime within the juris-

diction of the Court if that person: aids, abets or otherwise assists in its commission

or its attempted commission, including providing the means for its commission” (em-

phasis added). In principle, the practice of convicting businessmen through interna-

tional criminal courts is of long standing, since the Nuremberg trials at which several

leading German industrialists were convicted for war crimes494. Such convictions,

however, are still very rare.

D. The international community’s “responsibility to protect”

Within the context of the issue of responsibility, I would like to discuss a third

type of “actor,” one, admittedly, of a unique character: the “international community.”

Does the international community have a responsibility to intervene in order to pre-

vent grave violations of human rights law and humanitarian law? When Kofi Annan

493 Cf. A. Schintgen, "Verantwortlichkeit von Firmen bei der Ausbeutung von Bodenschätzen in bewaffneten

Konflikten unter dem Römer Statut", TRIAL – Die Zeitschrift der Schweizerischen Gesellschaft für

Völkerrecht, No. 17 (2008).

494 See Krupp Trial; Flick and others; and IG Farben Trial.

251

left office at the end of 2006, he was asked what he considered to be his most signi-

ficant achievements as UN Secretary-General. He mentioned the development of

one particular concept: the responsibility to protect495. Why did he attach so much

weight to this idea? He was convinced that it would be of great consequence to inter-

national law and, more importantly, to actual people. The central idea of the new prin-

ciple is fairly simple: No State must be allowed to use the argument of sovereignty to

shield the perpetration of massive human rights violations on its territory from ex-

ternal intervention. Atrocities must not be made possible by misuse of the principle of

non-intervention in internal affairs and of the prohibition of the use of force in interna-

tional relations. The phrase “responsibility to protect’ encapsulates

“the idea that the responsibility to protect its people from killing and other grave harm

[is] the most basic and fundamental of all the responsibilities that sovereignty imposes

– and that if a State cannot or will not protect its people from such harm, then coercive

intervention for human protection purposes, including ultimately military intervention, by

others in the international community may be warranted in extreme cases.”496

More precisely, if a State is not able or not willing to protect its people, international

intervention must be an option in cases of genocide and – particularly interesting

from the perspective of humanitarian law – where “crimes against humanity and viol -

ations of the laws of war, as defined in the Geneva Conventions and Additional Pro-

tocols and elsewhere (…) involve large scale killing or ethnic cleansing” as well as in

“situations of State collapse and the resultant exposure of the population to mass

starvation and/or civil war”497. The purpose of the “responsibility to protect”, its pro-

495 C. Verlage, Responsibility to Protect - Ein neuer Ansatz im Völkerrecht zur Verhinderung von Völkermord,

Kriegsverbrechen und Verbrechen gegen die Menschlichkeit, Tübingen, Mohr Siebeck, 2009, p. 1.

496 Report International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ott-

awa, 2001 (published in UN Doc A/RES 56/83 Annex), p. 69.

497 Ibid., p. 33.

252

ponents argue, is not to undermine sovereignty. In fact, every State has the primary

responsibility – towards its own population and towards the international community –

to prevent genocide, crimes against humanity and war crimes on its own territory. If a

State, however, cannot or will not protect its people, the community of States has a

secondary and collective responsibility to protect those in danger498.

It is still very much a matter for debate whether the community of States even

has a legal obligation to intervene in certain circumstances in order to prevent the

worst crimes. The question, then, is whether by standing by and doing nothing, the

international community is acting lawfully in cases involving the commission of atro-

cities on a large scale. Kofi Annan, for example, is convinced that there actually is a

“duty to protect populations from genocide, war crimes, ethnic cleansing and crimes

against humanity”499: there must be no recurrence of gross abuses of the law like the

massacres in Srebrenica or in Rwanda. The prevalent view, however, is that the ad-

option of the responsibility to protect does not yet imply, under international law, an

obligation to intervene500. But we should not forget that the concept has only just

emerged and that its impact on international law is potentially far-reaching.

According to the initial report of the International Commission on Intervention

and State Sovereignty, the ‘responsibility to protect’ implies not only a ‘responsibility

to react’ and a ‘responsibility to rebuild,’ but also a “responsibility to prevent.’ The re-

port states that

498 Cf. UN General Assembly, 2005 World Summit Outcome, Resolution A/Res/60/1, paras 138 and 139.

499 UN Secretary-General Kofi Annan’s address to the Non-Aligned Movement’s Conference in Havana, Cuba,

15 September 2006, UN Doc. SG/SM/10636, cited in C. Verlage, op. cit., supra note Error: Reference source

not found, p. 188.

500 C. Verlage, op. cit., supra note Error: Reference source not found, p. 223.

253

“what is necessary is for the international community to change its basic mindset from

a ‘culture of reaction’ to that of a ‘culture of prevention’ (…) Without a genuine commit-

ment to conflict prevention at all levels (…) the world will continue to witness the need-

less slaughter of our fellow human beings, and the reckless waste of precious re-

sources on conflict rather than social and economic development. The time has come

for all of us to take practical responsibility to prevent the needless loss of human life,

and to be ready to act in the cause of prevention and not just in the aftermath of dis-

aster.”501

With regard to the issues discussed in this chapter, we may ask whether the

international community has a responsibility – or even an obligation – to prevent acts

that may lead to atrocities on a massive scale. Does it, for instance, have an obliga-

tion to prevent arms transfers if the destinations of those arms are places where they

might be used to commit genocide or war crimes? Has the international community

an obligation to prevent trade - in resources - whose purpose, widely acknowledged,

is to sustain a conflict notorious for the commission of grave violations of international

humanitarian law? What, precisely, are the implications for the international com-

munity of the adoption of the responsibility to protect? These questions cannot be

answered here. They are left to the reader for further reflection. Such questions will

undoubtedly trouble the international community in the years to come. The interna-

tional community took on the responsibility to protect in 2005 and I would agree that

“this creates a powerful mandate for reform”502 - at the very least.

501 International Commission on Intervention and State Sovereignty, op. cit., supra note Error: Reference source

not found, p. 27.

502 A. J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities, Cambridge, Polity Press,

2009, p. 196.

254

CHAPTER SIX

A NETWORK OF HUMANITARIAN ACTORS – PROMOTION OF

INTERNATIONAL HUMANITARIAN LAW

“Et l’humanitaire est en quelque sorte la part univer-

selle de la démocratie. En rôdant dans les régions

extrêmes, lointaines, celles du malheur et de l’altéri-

té, l’humainitaire témoigne de la valeur universelle

de la Lumière. “

Jean Christophe Rufin503

There exists – between States and overarching them – a global order of gov-

ernance. It is dominated by States and governments. But it is embedded in networks

of actors and relations some of them exercising formal, institutional power and some

“soft” power of persuasion.504 The Red Cross Movement, supported by and shaping

international humanitarian law, has been part of this international system for a long

time.

The main and traditional components of the Red Cross Movement are the In-

ternational Committee of the Red Cross, the International Federation of the Red

Cross and Red Cresent Societies and the national Red Cross and Red Cresent Soci-

eties.505 other universal and regional institutions are, increasingly, taking on humanit-503 J. C. Rufin, L’aventure humanitaire, Paris, Editions Gallimard, 1994, p. 33/34.

504 See A.-M. Slaughter, A New World Order, Princeton, Princeton University Press, 2004. Slaughter is con-

cerned with “a world of government networks”, whereas we have in mind a broader view of global gov-

ernance and policy networks embracing also non-state actors and actors which are not state organs.

505 The division of responsibilities between the International Committee of the Red Cross on the one hand and

the Federation of the Red Cross and Red Crescent Societies on the other hand is quite delicate. It was agreed

255

arian tasks 506. And one should also mention the growing role of non-governmental or-

ganizations (NGOs) and the media. These networks, sometimes loosely and in other

instances closely connected, may be, as a whole and in their interconnectedness,

legally best understood from a constitutional perspective. This is not to say that we

consider the international system as a constitutional order, firmly established and

tending towards a world state. Such a legal development would be neither possible

today nor desirable. But constitutional forces seem to hold various sets of institutions

together and make the system visible as a coherent, ensemble.

The emergence of a global network in the humanitarian field has influenced

and in future will influence international humanitarian law. New concepts and initiat-

ives in international law have been put forward by various institutions, academic and

non-academic; and governmental and non-governmental actors - global and regional

- have carried on these efforts. The rise of new global players such as transnational

corporations, non-governmental organizations (NGOs) and media institutions, con-

tributed to the present state of affairs, in which the rules and principles that regulate

war are no longer the exclusive responsibility of States and the ICRC. An increasing

variety of institutions and actors are contributing to the development, promotion and

dissemination of humanitarian law: a veritable global network of actors in interna-

tional humanitarian law has emerged. This chapter aims to describe the role, in inter-

national humanitarian law, of some of these various players. It goes without saying

between the components in the so-called Sevilla Agreement the responsibilities of the ICRC lays mainly in

man-made emergences of armed conflict whereas situations of natural catastrophes are mainly dealt with by

the other components of the movement.

506 Cf. R. Wolfrum and D. Fleck, "Enforcement of International Humanitarian Law“, in D. Fleck (ed.), The

Handbook of International Humanitarian Law, 2nd edition, Oxford, Oxford University Press, 2008, pp. 675

et seq.

256

that it is impossible to do justice to all the actors in the humanitarian field. The scope

of a review such as this is, of necessity, limited. But this should not prevent us from

getting a general idea of some of the major contributors within this growing network.

In the pages that follow, we will examine the crucial role of the International Commit-

tee of the Red Cross, the work of various bodies of the UN, of the International Court

of Justice, the European Union, the Council of Europe, Non-govenmental organisa-

tions and, finally, the media.

I. The International Committee of the Red Cross

International humanitarian law has long been identified mainly with the Interna-

tional Committee of the Red Cross (ICRC). The ICRC is a unique and universally re-

spected humanitarian organisation that has been protecting and assisting victims of

armed conflicts and of other situations of violence since its foundation in 1863. Four

times, it has been awarded the Peace Nobel Price. The International Committee of

the Red Cross undertakes a wide range of activities in the field, such as providing

neutral medical services, visiting prisoners of war and political and security prisoners,

caring for the civilian population, tracing missing persons and restoring family links

throughout the world507. Today, the ICRC’s budget amounts to roughly one billion

Swiss francs. It employs more than 1,400 expatriate staff all over the world and al -

most 10,000 national staff. The ICRC’s major operations are in Sudan, Israel and the

occupied and autonomous Palestinian territories, Iraq, Afghanistan, the Democratic

507 Cf. “The International Committee of the Red Cross: Its mission and work,” adopted by the Assembly of the

ICRC on 19 June 2008, reprinted in International Review of the Red Cross, No. 874, 2009, pp. 399 et seq.;

see also D.P. Forsythe, “The ICRC: A unique humanitarian protagonist”, International Review of the Red

Cross, Vol. 89, No. 865 (2007), pp. 63 et seq.

257

Republic of the Congo, Colombia, the Russian Federation, Somalia, Ethiopia, Sri

Lanka, Pakistan, Uganda, Côte d’Ivoire, Liberia, Chad, Indonesia and Lebanon. Its

delegations and missions are present in more than 80 countries around the world508.

The International Committee of the Red Cross has a paradoxal character in a

double sense: it is universal in its outlook, but local in its origine and it sees itself as

institution rooted in rule of law but works in practice in a pragmatic way.

The ICRC is universal in character and it is recognized as a subject under

public international law. This flowes from the aim and principles of action embodied in

its statutes. Sufferings of every human being are to be mitigated and prevented,

without discrimination of any sort. Even members of the enemy forces have the right

to be treated according to the same principles as members of a State’s own forces.

But despite its universalistic outlook the International Committee of the Red Cross

has a local character as far as its historical roots and the shape of its organisation

are concerned. As the largest private relief system for conflict situations it is organ-

ized as an association under Swiss private law. It embraces not more than 25 Swiss

citizens as its members who, in fact, constitute the governing body and highest

policy-making organ the Institution.509 Caroline Moorhaed commented about its ori-

gins: “A new movement had been born, in private, among private people and in a

small, apparently powerless country, which would soon catch fire the rulers troughout

the world.”510 “If the International Committee did not exist, no one would be able, in

the 1990s, to invent it. Who today would put the power to monitor and criticize all the

508 For more details, see the ICRC’s Annual Report for 2008.

509 See D.P. Forsythe, op. cit., supra note Error: Reference source not found, pp. 63 et seq.

510 C. Moorhead, Dunant’s Dream, War, Switzerland and the History of the Red Cross, London, Harpers

Collins, 1998, p. 21.

258

governments of the world in the hands of a small band of co-opted elderly Swiss law-

yers and bankers? Its mandate is unique and its composition a quirk of history.”511

And Jean-Christophe Rufin wrote: “Suisse et universelle, neutre et traitant avec des

Etats, puissante mais dépendante de la parole donnée telles sont les ambiguités de

la Croix-Rouge Internationale.”512

The International Committee of the Red Cross, then, is unique in its legal char-

acter and its pragmatic mode of action. It has, for some considerable time now, been

the decisive agent for creating, developing and promoting international humanitarian

law513. It is at the origin of the Geneva Conventions. The Organisation has been the

main driving force in promoting and strengthening international humanitarian law and

universal humanitarian principles. It campaigned for widening humanitarian protec-

tion to include internal, as well as international wars and for limiting the means and

methods of warfare. Law gives the ICRC the basis from which to act. However, the

institution is well aware of the fact that the power of legal rules to shape behaviour in

the faces of murderous ideologies and persistant nationalism is limited. Its legal

idealism is tempered by a healthy dose of scepticism. Its legal foundation and char-

acter does not mean that it is not also pragmatic in nature. Jacques Freymond, a

former acting president of the Committee, said that its policy is carried out by a “prag-

matic approach” and that the Red Cross “expresses itself first of all in actions.”514

Jean Pictet wrote that the Red Cross “is above all made of practical actions, which

are very varied and often improvised (and that) the Red Cross from the first modelled

511 Ibid., p. Xxii.

512 J.-Ch. Rufin, L’aventure humanitaire, Paris, Editions Gallimard, 1994, p. 53.

513 Cf. Y. Sandoz, „International Humanitarian Law in the Twenty-First Century“, Yearbook of International

Humanitarian Law, Vol. 6, 2003, pp. 3 et seq.

514 D.P. Forsythe, op. cit., supra note Error: Reference source not found, S. 294.

259

itself upon human nature and it is in the rude school of life that its dogmas were

forged.”515

The International Committee of the Red Cross thus is a complex, unique or-

ganisation. It is universal in its worldwide outlook and functions, and Swiss in its his-

torical origin, acting with means of humanitarian diplomacy and otherwise. In the

world of humanitarian institutions it “marches to its own drummer”. 516 Part of its spe-

cial idendity is first of all that it is based on and acts with means of law. Law (and soft

law standards) constitute, in its self-image and in the image of others, its special

character and in the last analysis, its legitimacy. In its actions, the Committee was, on

the whole, successful. Nelson Mandela, when in prison for exemple, advised the

ICRC to continue its visits to South Africa, is reliabliy reported to have said “Always

remember that what matters is not only the good you bring but just as much the bad

you prevent”517. The ICRC is undoubtedly the first organization to come to mind when

one thinks of sustainable humanitarian action and international humanitarian law. In

this chapter, I would like to focus also on other actors, whose links to humanitarian

law and humanitarian action are less well known.

515 Ibid., p. 244/45.

516 Ibid., p. 25.

517 Cf. B. Simma (ed.), The Charter of the United Nations: a commentary, 2nd ed., Oxford, Oxford University

Press, 2002; D.P. Forsythe, The Humanitarians, The International Committee of the Red Cross, Cambridge,

Cambridge University Press, 2005, p. 77.

260

II. The role of the United Nations

Peace, security and human rights are among the fundamental, or most import-

ant, concerns of the United Nations (UN) (Article 1, para. 1 of the UN-Charter).518

However, during the first twenty years of its existence, the United Nations had a fairly

distant relationship with humanitarian law. This was deliberate and the reasons for it

were philosophical: the UN was established after the end of World War II and its

main objectives at the time were to secure world peace and international security, not

to regulate war519. Such ideas were enormously appealing in the formative years of

the UN; its representatives felt that if the laws of war were included in the agenda,

“public opinion might interpret its action as showing a lack of confidence in the effi -

ciency of the means at the disposal of the UN for maintaining peace.”520 By the end of

the 1960s, this policy had begun to change. In 1968, the General Assembly adopted

Resolution 2444 on respecting human rights during armed conflict521. But it was only

when the Cold War ended that the UN began to assume a considerable role in the

development of international humanitarian law. This body of law is still not the main

focus of the UN, but the organization now considers it to be an important means to

achieve international peace and security. That is why UN bodies now contribute to

the development of humanitarian law in various ways522. With regard to humanitarian 518 Cf. W.G. Grewe, Epochen der Völkerrechtsgeschichte, Baden-Baden, Nomos Verlagsgesellschaft, 1988, pp.

685 et seq.

519 Cf. F. Kalshoven and L. Zegveld, Constraints on the Waging of War, Geneva, ICRC, 2001, pp. 29 et seq.

520 V. Petrovsky, “The Increasing Relevance of International Humanitarian Law: The Work of the UN”, in L.

Condorelli, A.M. La Rosa and S. Scherrer (eds), The UN and International Humanitarian Law, Paris, Edi-

tions Pedone, 1996, pp. 29 et seq., pp. 30 et seq.

521 UN General Assembly Resolution 2444 (XXIII), Respect for Human Rights in Armed Conflict, 19 Decem-

ber 1968.

522 M. Bothe, "The UN Actions for the Respect of International Humanitarian Law and the Coordination of Re-

lated International Operations", in Condorelli, La Rosa and Scherrer (eds), op. cit., supra note Error: Refer-

261

law, the UN describes its three main functions as elaboration, enforcement and in-

volvement523. Organs and agencies within the United Nations contribute to preserving

the pertinence of international humanitarian law in a number of different ways: by re-

minding warring parties of the applicability of the law, by calling for compliance with

its rules, by referring to humanitarian law in resolutions and by establishing fact-find-

ing missions that are entrusted with the task of inquiring into alleged violations of in-

ternational humanitarian law524. Let us now turn our attention to the Security Council,

the General Assembly and the Human Rights Council, and to the International Court

of Justice.

A. The Security Council

A) General remarks

The primary responsibility for preserving international peace and security lies

with the Security Council525. Since the UN has started to regard respect for interna-

tional humanitarian law vital for the preservation and restoration of world peace, the

Security Council’s involvement with this branche of international law has grown over

ence source not found, pp. 213-228, p. 227. For a general account see A. Roberts and D. Zaum, Selective Se-

curity: War and the United Nations Security Council since 1945 , London, International Institute for Strategic

Studies, 2008; V. Lowe, A. Roberts, J. Welsh and D. Zaum (eds), The United Nations Security Council and

War: The Evolution of Thought and Practice since 1945, Oxford, Oxford University Press, 2008.

523 V. Petrovsky, op. cit., supra note Error: Reference source not found, pp. 30 et seq.

524 H.P. Gasser, "The International Committee of the Red Cross and the UN’s Involvement in the Implementa-

tion of International Humanitarian Law", in L. Condorelli, A.M. La Rosa and S. Scherrer (eds), op. cit.,

supra note Error: Reference source not found, pp. 259 et seq., p. 282.

525 UN Charter, Chapter V, Art. 24, para. 1. See detailed analysis V. Lowe, A. Roberts, J. Welsh and D. Zaum

(eds), The United Nations Security Council and War – The Evolution of Thought and Practice since 1945 ,

Oxford, Oxford University Press, 2008.

262

the years526, especially after the end of the Cold War527. Since then, it has produced

an impressive series of resolutions regarding international humanitarian law. The Se-

curity Council, as long as it acts in accordance with the purposes and principles of

the Charter, can take a wide range of decisions relating to international humanitarian

law.528

Since the early 1990s, in the context of the armed conflicts in Iraq, Bosnia and

Herzegowina, Rwanda and Kosovo, the Security Council had repeatedly recognized

“that massiv and systematic breaches of human rights law and international humanit -

arian law constitute threats to international peace and security and therefore demand

its attention and action”529. In 1999 and 2000, it adopted two ground-breaking resolu-

tions, in particular with respect to its determination to protect civilians. In Resolution

1265, the Council expressed “its willingness to respond to situations of armed conflict

where civilians are being targeted or humanitarian assistance to civilians is being de-

liberately obstructed, including through the consideration of appropriate measures at

the Council’s disposal in accordance with the Charter of the United Nations”530. Ac-

526 Cf. Condorelli, La Rosa and Scherrer (eds), op. cit., supra note Error: Reference source not found.

527 Cf. B. Boutros-Ghali, “Introduction, United Nations”, in United Nations (ed.), The Blue Helmets: A Review

of United Nations Peace-Keeping, New York, United Nations, 1996, pp. 3 et seq.; H.G. Ehrhart and K.

Klingenburg, "Was heisst Peacekeeping?", in H.G. Ehrhart and K. Klingenburg (eds), UN-Friedenssicherung

1985–1995, Baden-Baden, Nomos Verlagsgesellschaft, 1996, pp. 26 et seq.

528 Cf. T. Pfanner, “Various Mechanisms and Approaches for Implementing International Humanitarian Law

and Protecting and Assisting War Victims”, International Review of the Red Cross, No. 874, 2009, pp. 314-

318.

529 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, 8

September 1999, UN Doc No S/1999/957, paras 27 to 31.

530 Security Council Resolution 1265, 17 September 1999, UN Doc No S/RES/1265 (1999), para. 10; Cf. Se-

curtiy Council Resolution 1296, 19 April 2000, UN Doc No S/RES/1296 (2000).

263

cording to the Report preceding this Resolution, such measures include a wide range

of activities and may go as far as measures of enforcement listed under Chapter VII

of the Charter.531 More recently, the Security Council has called upon the belligerents

to respect humanitarian law in international conflicts (such as the ones in Iraq and

Georgia532) as well as in non-international armed conflicts (such as the ones in

Somalia and Sudan533) which are also considered to constitute a threat to interna-

tional peace and security. The Security Council invokes humanitarian law in various

other ways534: for instance, it reminds the parties to the conflict of specific rules and

takes measures to implement humanitarian law. It therefore regularly refers to the

Geneva Conventions and the Hague Conventions, and reiterates that the latter must

be applied by all parties, regardless of the circumstances. The Security Council also

gives its backing to the important role played by the UN with regard to humanitarian

issues in areas of conflict and ensures the provision of assistance with regard to the

humanitarian needs of civilians, the protection of the natural environment and the cul-

tural assets of conflict zones.

531 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, 8

September 1999, UN Doc No S/1999/957, para. 34.

532 See, e.g., Security Council Resolutions 1546 and 1808, UN Doc No. S/RES/1546 (2004) and S/RES/1808

(2008). See also Security Council Resolution 1701 (2006) concerning the conflict in Lebanon.

533 See, e.g., Security Council Resolutions 1872 and 1870, UN Doc No. S/RES/1872 (2009) and S/RES/1870

(2009).

534 F. Schwendimann, Rechtsfragen des Humanitären Völkerrechts bei Friedensmissionen der Vereinten Natio-

nen, Diss. Zurich, 2007, pp. 57 et seq.; see also, G. Nolte, "Practice of the UN Security Council with Respect

to Humanitarian Law", in K. Dicke et al. (eds), Weltinnenrecht, Berlin, Duncker & Humblot, 2005, pp. 487

et seq.; and S. Talmon, "The Security Council as world legislature", in American Journal of International

Law, Vol. 99 (2005), pp. 175 et seq., pp. 179 et seq.

264

In most of the resolutions in which the Security Council has referred to interna-

tional humanitarian law, its main focus has been the protection of civilians in areas of

conflict535. It has also called on warring parties not to undertake targeted killings of ci-

vilian and reaffirmed its commitment to implementing adequate instruments for the

protection of civilians, especially peace-keeping operations536. The Security Council

has expressed especial concern about the many gaps in the implementation of hu-

manitarian law and called for a concerted effort to develop measures to urge all

States to comply with the law537.

The Security Council has also taken a number of other steps to enforce hu-

manitarian law. For instance, it has sent groups of experts to gather information

about a particular situation, as in East Timor, or to investigate war crimes, which it did

during the Iran-Iraq war of 1980-1988. F. Kalshoven has pointed out a particularly

noteworthy example: “[The Security Council established a group of experts] to collect

and analyse all the available information about war crimes in the former Yugoslavia

(...) In 1993, (...) it followed this up with the establishment of the International Crim-

inal Tribunal for the Former Yugoslavia – a step followed in 1994 with the Interna-

tional Criminal Tribunal for Rwanda.”538 These actions by the Security Council were

535 See, e.g., Resolution 1296 (2000) concerning protection for civilians during armed conflict, the declaration

of 12 February 1999 by the President of the Security Council, or Resolution 1528 (2004) concerning the situ-

ation in Haiti. In Resolution 1296, the Security Council referred to the Secretary-General’s report, of 8

September 1999, regarding protection for civilians during armed conflict, and affirmed its support for his

condemnation of all targeted killings of civilians. Cf. H.P. Gasser, op. cit., supra note Error: Reference

source not found, p. 204.

536 Cf. UN Doc. No. S/Res/1296 (2000), paras 1, 2, 3, 5 et seq.

537 See the declaration of 12 February 2004 by the President of the Security Council, which deals with protec-

tion for civilians. Cf. UN Doc. No. S/PRST/1999/6, para. 2.

538 F. Kalshoven, Reflections on the Law of War, Leiden, Martinus Nijhoff, 2007, pp. 732 et seq.

265

efforts to serve justice - years before the International Criminal Court was estab-

lished539. The tribunals had jurisdiction over crimes against humanity, genocide and

war crimes and are generally acknowledged to be a turning point in the development

of humanitarian law, “both as a body of law and in the political and legal culture of na-

tions”540.

b) Peacekeeping Operations 541

The Security Council has another instrument at its disposal for the fulfilment

of its task: it may establish peacekeeping operations, an instrument that has become

particularly important for the prevention of violent conflict and the preservation of in-

ternational peace. Although not explicitly mentioned in the UN Charter and defying a

simple definition, peacekeeping missions have been referred to by Dag Ham-

marskjöld, the second UN Secretary-General, as belonging to "Chapter Six and a

Half" of the Charter. He therewith placed them between traditional methods of resolv-

ing disputes peacefully, such as negotiation and mediation under Chapter VI, and

more forceful action as authorized under Chapter VII. Since it has been contested by

certain UN Member States that the expenses for peacekeeping operations are ex-

539 UN Security Council Resolutions 808 (1993) of 22 February 1993 and 837 (1993) of 25 May 1993; also UN

Security Council Resolution 955 (1994) of 8 November 1994.

540 V. Petrovsky, op. cit., supra note Error: Reference source not found, pp. 48 et seq.

541 Cf. for peacekeeping in general M. Bothe, “Peace-Keeping”, in B. Simma (ed.), The Charter of the United

Nations – A Commentary, 2nd ed., Oxford, Oxford University Press, 2002, pp. 648 et seq; A. Cassese (eds),

United Nations Peace-Keeping, Alphen, Sijthoff and Noordhoff, 1978; H. Langholtz, B. Kondoch and A.

Wells, International Peacekeeping, Leiden, Hotei Publishing, 2004; E. Moxon-Browne, A Future for Peace-

keeping? Baringstoke, Macmillan Press, 1998; A. J. Bellamy and P. Williams, Understanding Peacekeeping,

Polity Press, Cambridge, 2010; D. Schindler, “United Nations Forces and International Humanitarian Law“,

in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in

Honour of Jean Pictet, Geneva/The Hague, ICRC/Martinus Nijhoff, 1984, pp. 521 et seq.

266

penses within the meaning of Art. 17 para. 2 UN Charter, the International Court of

Justice gave an Advisory Opinion (“certain expenses”) in 1962 stating that these op-

erations fulfil a prime purpose of the United Nations in promoting and maintaining a

peaceful settlement of a dispute.542

Due to the dynamic development this instrument has undergone since its beginning,

there is no consistent definition of what a peacekeeping operation precisely is. In its ori-

ginal form, peacekeeping missions are described as actions to keep or rebuild world

peace and international security, using armed forces in an international armed conflict

on the grounds of consent of all parties but without use of force (except in cases of self-

defense)543. The traditional functions of peacekeeping are prevention of conflicts, secur-

ing and consolidating peace.

The first armed UN-peacekeeping mission has taken place in 1956 to secure peace

between Egypt and Israel (UNEF)544. All following missions until the end of the Cold

War are considered to be missions of the so called “first generation” of peacekeeping

and can be described by three criteria: by the consent of all parties, the impartiality of

the mission and by the use of force only in cases of self-defence545. Those missions

were sent out particularly to monitor ceasefires or for the easing of situations of crisis,

for example through the formation of buffer areas (so called observer missions).

With the end of the Cold War, the character of armed conflicts changed; international

conflicts diminished, internal conflicts with complex reasons grew. Therefore, also

peacekeeping missions changed. In the “agenda for peace” in 1992, the Secretary-

General Boutros Boutros-Ghali tried to define the conditions for the new generation of

peacekeeping missions546. The scope of duties has been amplified; humanitarian help,

the build-up of civil administration, the preparation of elections, police duties and the

monitoring of the human rights situation were added to the functions of traditional

peacekeeping547.

542 ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of

20 July 1962, ICJ Reports 1962, p. 151.

543 E. Suy, “United Nations Peacekeeping System”, EPIL IV (2000), p. 1143.

544 United Nations Emergency Force (UNEF), UN Doc., GA/Res. 998 ES-I (1956).

545 B. Boutros-Ghali, supra note Error: Reference source not found, p. 4 et seq.

546 Cf. “Agenda for Peace”, UN Doc. A/47/277-S/24111.

267

In the middle of the 1990s, a third generation of peacekeeping emerged, the so called

robust peacekeeping or peace-enforcement. On the grounds of Chapter VII UN-Charter

and the threat or breach of the peace, the Security Council dispatched robust peace-

keeping missions, for example in Somalia in 1992548 or in Sarajevo in 1992549. These

missions, which took place in a very instable environment, brought a change of peace-

keeping. The principles of consent, impartiality and non-use of force were interpreted in

a new way. Hence, the consent of all parties is still desirable, but not necessarily a re-

quirement. Furthermore, the criterion of impartiality does not detain UN-troops any

more from interfering in cases of serious violations of human rights550. Finally, the prin-

ciple of non-use of force has been further weakened. To secure peace, the troops now

are allowed to use all necessary means551.

Several questions of humanitarian law arise with the dispatch of peacekeep-

ing missions, first and foremost, whether the missions are bound by the rules of hu-

manitarian law. As an international organisation, the United Nations are not a con-

tracting party of the Geneva Conventions; however, in the light of the aims to secure

world peace and international security, the UN are considered to be bound by the ba-

547 Cf. T. Marauhn, “Streitkräfte zur Friedenssicherung im Ausland: Zwischen militärischem und polizeilichem

Einsatz”, in Zimmermann et al., Moderne Konfliktformen – Humanitäres Völkerrecht und privatrechtliche

Folgen, Heidelberg, C.F. Müller, 2010, pp. 249 et seq. See, e.g., United Nations Angola Verification Mission

I-III (UNNA VEM I-III), S/Res/ 626 (1988), S/Res/ 696 (1991), S/Res/976 (1995); United Nations

Transitional Authority in Cambodia (UNTAC), S/Res/745 (1992); United Nations Operation in Mozambique

(ONUMOZ), S/Res/797 (1992); United Nations Mission in Haiti (UNMIH), S/Res/867 (1993).

548 UNOSOM I, S/Res/751 (1992); UNOSOM II S/Res/814 (1993).

549 UNPROFOR, S/Res/743 (1992); cf. also S. Nambiar, “UN Peacekeeping Operations in the Former

Yugoslavia – from UNPROFOR to Kosovo”, in R. Thakur and A. Schnabel (eds), United Nations Peacekeep-

ing Operations, Tokio/New York/Paris, United Nations University Press, 2001, p. 167 et seq.

550 S. Vöneky and R. Wolfrum, “Die Reform der Friedensmissionen der Vereinten Nationen und ihre Umsetzung

nach deutschem Verfassungsrecht”, in ZaöVR, Vol. 62, No. 3, 2002, pp. 582 et seq.

551 Cf. Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict,

op.cit., supra note Error: Reference source not found.

268

sic principles of humanitarian law552. Most experts share the opinion of the ICRC that

the applicable law should be determined case by case and not on the basis of a

formal mandate handed down by the Security Council. According to this view, inter-

national humanitarian law applies as soon as multinational troops are involved in

armed conflicts; hence, humanitarian law has to be respected also by peacekeeping

missions553.

This approach has been supported by Secretary General Kofi Annan in his

Bulletin “Observance by United Nations forces of international humanitarian law”554 in

1999. It is of great programmatic value. Traditionally, the UN has never confirmed

that humanitarian law as such does apply to UN peacekeeping; rather, it has held

that the “principles and spirit” of the general international Conventions apply to the

conduct of military personnel. The Bulletin now claims “the fundamental principles

and rules of international humanitarian law were applicable to United Nations forces

conducting operations under United Nations command and control”. In general, the

UN has increasingly concerned itself with the promotion and safeguarding of interna-

tional humanitarian law. An important reason for this development is the understand-

ing that the World Organization cannot promote respect for humanitarian law without

observing this body of law itself. A similar perspective is taken by Andrew Clapham

who is in favour of obligations going beyond the traditional state-focused approach of

international law and applying to both state and non-state actors.555 According to this

552 M. Zwanenburg, Accountability of Peace Support Operations, Leiden/Boston, Martinus Nijhoff, 2005, p.

324; see also F. Schwendimann, supra note Error: Reference source not found, p. 42 et seq.

553 J. Abt, “Offizielles Statement des IKRK vom 29. März 2005”, in N. Azimi and Chang Li Lin (eds), United

Nations as Peacekeepers and Nation-Builder: Continuity and Change – What lies ahead? Leiden/Boston,

Martinus Nijhoff Publisher for UNITAR, 2006, p. 65 et seq.

554 UN Doc. ST/SGB/1999/13.555 See above Chapter V., 6.C.

269

perspective, it is not the participation of those actors in the law-making process but

their actual involvement in an armed conflict that obliges them to respect humanit-

arian law. In this sense, obligations exist for all entities - State or non-State - taking

part in hostilities, regardless of whether they are “subjects” under international law,

the main criterion being the ability of an actor to participate in an armed conflict. For

this reason, non-State actors such as UN peacekeeping forces are should necessar-

ily be bound by humanitarian law, despite their not having taken part in the law-mak-

ing process.556 Furthermore, it has been discussed lately, if specific agreement

should be concluded concerning the applicability of international humanitarian law by

peacekeeping missions of the United Nations557.

Even more difficult is the problem whether the law of international or non-in-

ternational armed conflicts applies to actions of peacekeeping missions. Again, there

exist controversial answers and theories to this question in doctrine and practice. In

his above mentioned bulletin, the Secretary General discussed this question. In his

above mentioned bulletin, the Secretary General discussed this question. He referred

particularly to customary international humanitarian law, as for example the protec-

tion of wounded and sick persons, the sanitary and support personnel, the treatment

of prisoners of war, means and methods of warfare, protection of cultural goods and

the protection of the natural environment558. These rules of humanitarian law should

be applied by peacekeeping missions in any case. 556 A. Clapham, op. cit., supra note Error: Reference source not found, p. 28. See also, A. Clapham, “Extending

international criminal law beyond the individual to corporations and armed opposition groups”, Journal of

International Criminal Justice, Vol. 6, No. 5 (2008).

557 Cf. R. Kolb, G. Porretto and S. Vite, L’application du droit international humanitaire et des droit de l‘homme

aux organisations internationales, Brussels, Bruylant, 2005, p. 149 et seq.

558 UN Doc. ST/SGB/1999/13.

270

A second issue concerns the question whether and how far peacekeeping

missions themselves can contribute to the development and implementation of inter-

national humanitarian law and the compliance by other actors. Whereas under tradi-

tional international law peacekeeping were not authorized or even envisaged to mon-

itor compliance with humanitarian law, practice seems to have changed in recent

times. For example, certain peacekeeping resolutions of the Security Council lay

down a duty of UN peacekeeping missions to contribute, in particular, to the promo-

tion and protection of human rights as well as “to help investigate human rights viola-

tions with a view to help ending impunity.”559 are kept to provide humanitarian assist-

ance and humanitarian assistance and “to establish the necessary security condi-

tions.”560

Since the above mentioned establishment of “wider” peace keeping missions

after the end of the Cold War (Bosnia, Rwanda, Sierra Leone) their nature has con-

tinuously changed: missions with narrowly defined functions have been followed by

veritable humanitarian actors whose responsibilities have become more and more

complex and have been extended to the civil sector. Such additional tasks, going

beyond those of traditional peacekeeping, include, but are not limited to, humanit-

arian relief, separation of forces, disarmament of belligerent, the organization and su-

pervision of elections, the protection of civilian and personnel and agencies, guaran-

tee and denial of movement, capacity building, monitoring of ceasefires and enforce-

ment of no-fly zones.561

559 UN Security Council Resolution 1528, 27 February 2004, UN Doc. S/Res/1528 (2004), para. 6 (n); which is

similar to para 4 (d) of Security Council Resolution 1590, 24 March 2005, UN Doc. S/Res/1590.

560 UN Security Council Resolution 1528, 27 February 2004, UN Doc. S/Res/1528 (2004), para. 6 (k).

561 A. J. Bellamy, P. Williams and S. Griffin, Understanding Peacekeeping, Cambridge, Polity Press, 2004, pp.

129 et seq; T. Marauhn, op. cit., supra note Error: Reference source not found, pp. 249 et seq.

271

Engaging in humanitarian support and protection of human rights, a field

nowadays closely connected to (with) humanitarian law, peace keeping missions play

an increasingly important role in strengthening humanitarian law in conflict areas.

Since, peacekeeping missions have become a new relevant actor amongst others

building a civilian “humanitarian community”. However, this seems to be a janus-

faced phenomenon: On the one hand, such a network can lead to new synergies and

creates additional capacities in order to enforce humanitarian principles. On the other

hand, it involves problems of coherence and coordination (e.g. in the case of Rwanda

where over 200 NGOs were at work).

We should also be aware of shortcomings of the system. As former ICRC-

President Cornelio Sommaruga has observed: “Au fond, j’ai souvent eu l’impression

que les politiques, lorsqu’ils se trouvaient dans l’incapacité de résoudre une crise et

étaient sous la pression de l’opinion des medias, ont poussé en avant l’humanitaire.

Plutôt que de s’attacquer aux racines du mal, ils ont joué la carte humanitaire, no-

tamment en lui versant beaucoup d’argent. Ce faisant, l’humanitaire est devenue un

alibi pour ceux qui ne parviennent pas à résoudre des problèmes politiques. “ And he

continues concerning Ex-Yugoslavia: “On doit se demander si, dans ce conflit, plutôt

que d’escorter les humanitaires, la tâche de l’ONU et de ses troupes sur place n’au-

rait pas dû être de faire respecter le droit international et le droit international humani-

taire. Les Nations unies n’auraient-elles pas absolument du empêcher cette chose

terrible que fut la purification ethnique …? Or qu’a fait la communauté des nations,

l’ONU? Elle a laissé la purification ethnique se poursuivre pratiquement jusqu’au bout

… Il y eu certes des mots, de grandes déclarations, mais il fallait beaucoup plus: il

fallait intervenir. “562

562 M. Lorenzi, Entretiens avec Cornelio Sommaruga, Président du Comité international de la Croix-Rouge,

Lausanne, Favre, 1998, p. 53.

272

B. The General Assembly

a) General remarks

The Security Council is not the only body of the UN that promotes respect for

international humanitarian law. Like the Security Council, the General Assembly’s in-

volvement with humanitarian law is based on Article 89 of Protocol I of 8 June 1977

additional to the Geneva Conventions. And Articles 10 and 11 of the UN Charter al-

low the General Assembly to debate issues concerning world peace and international

security and to transfer resolutions and recommendations to the Security Council and

to the members of the UN.

As mentioned above, the UN, whether it was the Security Council or the Gen-

eral Assembly, was very reluctant early on to have any involvement with humanit-

arian law. This began to change with General Assembly Resolution 2444 of 19

December 1968563, Respect for Human Rights in Armed Conflicts, in which the Gen-

eral Assembly affirmed Resolution XXVIII of the International Conference of the Red

Cross in Vienna in 1965, on protection for civilians against the dangers of indiscrimin-

ate warfare. In Resolution 2444, the General Assembly set out three principles for

shaping the development of international humanitarian law: limits on the means that

can lawfully be chosen by the parties to a conflict, the prohibition of attacks against

the civilian population and the distinction between combatants and non-com-

batants564. This was the starting point of what has since been described as the Gen-

563 UN General Assembly Resolution 2444 (1968), UN Doc. No. A/7218 (1968).

564 H.P. Gasser, op. cit., supra note Error: Reference source not found, p. 270.

273

eral Assembly’s role in international humanitarian law: assisting in the development

of humanitarian law by confirming and reaffirming its principles565.

Another important step in the development of this aspect of the General As-

sembly was the adoption of Resolution 2675 of 9 December 1970, Basic Principles

for the Protection of Civilian Populations in Armed Conflicts. This resolution states

that combatants must take all precautions to prevent harming civilians; that housing

and other civilian installations should not be the object of military operations; and that

civilian populations, or individual members thereof, should not be the object of as-

saults566.

Since the 1970s, the General Assembly has focused on three areas of interna-

tional humanitarian law: the implementation of the law in terms of individual criminal

responsibility, respect for human rights during armed conflicts, and prohibitions on

the methods and means of warfare567. The elaborations of the General Assembly on

the problem of criminal responsibility contributed in no small part to the establishment

of the International Criminal Court in 2002. After the end of the Nuremberg trials, the

General Assembly recognized the need for a permanent international tribunal to deal

with war crimes. It was at the request of the General Assembly that, in 1950, a pro-

cess was set in motion to create such a tribunal. Eventually, in 1998, the General As-

sembly convened a conference in Rome with the aim of finalizing a treaty for this pur-

pose. Four years later, the Rome Statute of the International Criminal Court came

565 Cf. R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das

ehemalige Jugoslawien und Ruanda, Berlin, Berliner Wissenschaftsverlag, 2007, pp. 151 et seq.; see also,

H.P. Gasser, op. cit., supra note Error: Reference source not found, p. 52.

566 UN General Assembly Resolution 2675 (1970).

567 V. Petrovsky, op. cit., supra note Error: Reference source not found, p. 43.

274

into force. The importance of the Court is such that it is now considered to be part of

a process of global constitutionalization, in which it dispenses universal criminal

justice568.

Restricting the means and methods of warfare was yet another contribution

made by the General Assembly to the development of international humanitarian law.

Numerous conventions to this end were adopted between 1972 and 1993, such as

the Convention on the Prohibition of Chemical Weapons, adopted by the UN General

Assembly on 30 November 1992. This convention clearly influenced the development

of the Convention on the Prohibition of Anti-Personnel Mines, which was adopted in

1997569.

Though the UN, in general, had no direct involvement with humanitarian law in

its early days, the General Assembly’s very first resolution was crucial for the pur-

poses of that body of law. This resolution, adopted on 24 January 1946, established

a “commission to deal with the problems raised by the discovery of atomic energy.”570

The nuclear threat has preoccupied humanitarian experts and non-experts alike ever

since it first appeared. The Commission was charged, inter alia, to make specific pro-

posals “for the elimination from national armaments of atomic weapons and of all

other major weapons adaptable to mass destruction”571. The resolution may have

been adopted mainly for reasons of international security and not out of humanitarian

568 A. Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, Berlin, Duncker & Humblot, 2007, p. 1013.

569 S. Maslen and P. Herby, “An international ban on anti-personnel mines: History and negotiation of the

Ottawa Treaty’”, International Review of the Red Cross, Vol. 80, No. 325 (1998), pp. 693 et seq.

570 UN General Assembly Resolution 1 (I), Establishment of a Commission to Deal with the Problems Raised

by the Discovery of Atomic Energy, 24 January 1946.

571 Ibid., para. 5 (c).

275

concern. But, from a humanitarian perspective, one can rejoice in the rightness of the

resolution even though its motives may not have been especially lofty. Needless to

say, that General Assembly’s intention has not yet been realized. National interests

have seen to that. The General Assembly, however, followed up on its concern over

the nuclear threat and in 1957 created the International Atomic Energy Agency,

whose purpose was to control the spread of nuclear weapons. In addition, a series of

international treaties, such as the 1968 Treaty on the Non-Proliferation of Nuclear

Weapons572 and the 1996 Comprehensive Test Ban Treaty, helped to bring prolifera-

tion of nuclear weapons and the threat of nuclear war under control – at least to

some degree573.

In addition to these vital contributions, the General Assembly has also reiter-

ated the importance of complying with humanitarian law in numerous resolutions and

recommendations. It has emphatically labelled certain situations as armed conflicts

and called upon the parties involved to comply with the rules of humanitarian law 574.

For example, in contradiction to the States involved, the General Assembly has char-

acterized the Iraq-Kuwait war, the war in Afghanistan and the occupation of the

Golan Heights by Israel as internal armed conflicts or military occupation575.

572 Almost all States have subscribed to the Treaty on the Non-Proliferation of Nuclear Weapons. Only four

States - India, Pakistan, Israel and North Korea - are not yet party to it. The first three never ratified or ac -

ceded to the Treaty, and North Korea withdrew from it in 2005.

573 J.M. Hanhimäki, The UN: A Very Short Introduction, Oxford, Oxford University Press, 2008, pp. 65-69.

574 R. Provost, International Human Rights and Humanitarian Law, Cambridge, Cambridge University Press,

2002, p. 297.

575 R. Provost, op. cit., supra note Error: Reference source not found, p. 297.

276

In sum, the General Assembly has focused on protecting the civilian popula-

tion. A prominent example is the long series of resolutions on the Palestinian territor-

ies occupied by Israel576. It has regularly called upon all States to become parties to

treaties of humanitarian law, particularly the two Additional Protocols of 1977577. The

General Assembly has also had a prominent role in establishing some of the corner-

stones of current international humanitarian law, such as the International Criminal

Court and the Ottawa Treaty. Mainly, the General Assembly promotes humanitarian

law and helps to further its development by reaffirming its most important principles.

b) The Human Rights Council

The United Nations Commission on Human Rights and its successor, the Hu-

man Rights Council, were set up to deal specifically with issues related to the protec-

tion of human rights. At the Human Rights Commission, humanitarian law gradually

began to complement human rights law as an important object of attention; this trend

has continued at the Human Rights Council. Because the two bodies of law often

overlap, both the Human Rights Commission and the Human Rights Council have re-

ferred to humanitarian law on several occasions578, most prominently during the con-

576 See, e.g., UN General Assembly Resolution 2443 (1968) or Resolution 45/69 (1990) concerning the applica-

tion of the Fourth Geneva Convention to the occupation of Palestinian territory and the treatment of

Palestinians resisting, or alleged to be resisting, their Israeli occupiers”; Cf. H.P. Gasser, op. cit., supra note

Error: Reference source not found, p. 271 et seq.

577 See, e.g., UN General Assembly Resolution 49/48 of 9 December 1994, Status of the Protocols additional to

the Geneva Conventions of 1949 and relating to the Protection of Victims of Armed Conflicts. Cf. H.P.

Gasser, “Universal acceptance of international humanitarian law: Promotional activities of the ICRC”, Inter-

national Review of the Red Cross, Vol. 76, No. 302 (1994), pp. 450 et seq.

578 H.P. Gasser, op. cit., supra note Error: Reference source not found, pp. 279 et seq.

277

flicts in Afghanistan, Iraq, Lebanon and Gaza. Let me briefly elaborate on the con-

flicts in Lebanon and Gaza.

In August 2006, prompted by the human rights crisis in Lebanon caused by Israeli milit-

ary operations579, the Human Rights Council resolved to “establish urgently and imme-

diately dispatch a high-level Commission of Inquiry.” Paragraph 7 of the resolution

stated that the Commission was mandated: “(a) to investigate the systematic targeting

and killings of civilians by Israel in Lebanon; (b) to examine the types of weapons used

by Israel and their conformity with international law; and (c) to assess the extent and

deadly impact of Israeli attacks on human life, property, critical infrastructure and the

environment.” The Commission met with the president and the prime minister of Le-

banon, members of the Government and other senior officials, members of parliament,

local authorities, representatives from the private sector and from hospitals, victims and

witnesses, as well as representatives from NGOs and various UN agencies, among

them the UN Interim Force in Lebanon and the UN Truce Supervision Organization. In

its report580, the Commission provided an overview of the conflict and the historical

background; it also dealt with issues of classification (the legal character of the conflict

and the law applicable to it).581

The Commission emphasized the uniqueness of the conflict - active hostilities took

place only between Israeli forces and Hezbollah fighters - and defined it as interna-

tional armed conflict: in the Commission’s opinion, the absence of the Lebanese armed

forces from an active participation had no bearing on how the conflict should be classi-

fied. But in fact, the armed conflict was of a double character. First, there was an inter-

national armed conflict between Israel and Lebanon. Israel Defense Forces attacked

the Lebanese Armed Forces and its assets. The State of Lebanon in several aspects

was the subject of direct hostilities conducted by Israel. Though the Lebanese Armed

Forces did not actively participate in the hostilities and offered no resistance to the Is-

579 Human Rights Council Special Session Resolution S-2/1, The Grave Situation of Human Rights in Lebanon

Caused by Israeli Military Operations, 11 August 2006.

580 Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council

resolution S-2/1, 23 November 2006, UN Doc. No. A/HRC/3/2 (2006).

581 Cf. D. Thürer „Libanon-Konflikt: Zur Struktur einer (völker)rechtlichen Argumentation“, in D. Thürer,

Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2, Zurich/Baden-Baden,

Dike/Nomos, 2009, pp. 401 et seq.

278

raeli attacks, the Commission found that this does not deny “the character of the con-

flict as a legally cognizable international armed conflict”. Second, the conflict was

mainly of a transnational character. Active hostilities took place only between Hezbol-

lah, a militia based in Southern Lebanon, and the Israel Defense Forces. The Govern-

ment of Lebanon took the position that it was not responsible for and had not even prior

knowledge of the operations that initiated the conflict and were carried out by Hezbol-

lah. The Government of Israel, on the other hand, was of the view “that responsibility

[lay] with the Government of Lebanon, from whose territory these acts were launched

into Israel, and that the belligerent act was the act of a sovereign State, Lebanon.”

From an international humanitarian law standpoint, the dispute is irrelevant to the point

that international humanitarian law applies as soon as an armed conflict arises and it

binds all the parties to the conflict to fully comply with it.582

The report made repeated reference to the fact that the principle of humanity and hu-

manitarian considerations (in the terms of the Martens clause) were disregarded during

the conflict583. It condemned the violations of humanitarian law by the Israeli forces and

called upon Israel to abide by its obligations under international humanitarian law. In

particular, the experts concluded that though none of the weapons used by Israel was

illegal per se the way in which the weapons were used in some cases was contradict-

ory to international law. The Commission found that the use of cluster munitions “was

excessive and not justified by any reason of military necessity”. Furthermore, it con-

sidered that the “excessive, indiscriminate and disproportionate use of force” was con-

trary to the principles of military necessity, proportionality and distinction and thus con-

stituted “a flagrant violation of international humanitarian law”584. It also called upon the

Council to promote and monitor the obligation to “respect and ensure respect” by all

parties in a conflict, including non-State actors585.

Notwithstanding the importance that violations of human rights law and hu-

manitarian law are investigated, condemned and that action is taken by the interna-

tional community in order to rectify the situation, the Commission’s mandate was

582 Cf. Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights

Council Resolution S-2/1, 23 November 2006, UN Doc. No. A/HRC/3/2 (2006), paras 50-68.

583 Ibid., para. 10.

584 Ibid., paras 25 to 29.

585 Ibid., para. 349(g).

279

rightly critisized for its bias. The Commission of Inquiry was only asked to inquire into

misconduct by the Israeli armed forces. The formulation of the mandate resembled a

prejudgement of Israel and did not even include an inquiry into possible misconduct

of the Hezbollah fighters. There was no justification for such a one-sided mandate.

The Human Rights Council learned its lesson. During the winter of 2008-2009,

another short war in the Middle East was conducted between Israel and the Hamas.

In April 2009, the Human Rights Council established the United Nations Fact-Finding

Mission on the Gaza Conflict. This time, the Mission was entrusted with the mandate

“to investigate all violations of international human rights law and international hu-

manitarian law that might have been committed at any time in the context of the milit -

ary operations that were conducted in Gaza during the period from 27 December

2008 and 18 January 2009, whether before, during or after.”586 Unlike the one-sided

mandate given to the Commission established to inquire into the 2006 war in Le-

banon, the mandate of the Gaza Mission was balanced. The Mission considered “any

actions by all parties that might have constituted violations of international human

rights law or international humanitarian law”587. The Mission’s efforts were not politic-

ally motivated but guided by a commitment to the rule of law, in particular humanit -

arian law and human rights law. The inquiry was undertaken in an effort to pursue

justice and prevent those who had committed serious violations of the law from es-

caping punishment. Despite the balanced mandate, the Mission had to face some

major challenges, among them the non-cooperation of the Government of Israel and

its refusal to allow the experts to enter Gaza588, the West Bank and southern Israel.

The Mission criticized both parties to the conflict for their disrespect of international 586 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc. A/

HRC/12/48, para. 151.

587 Ibid., para. 152.

280

humanitarian law. It found that Palestinian armed forces failed to distinguish between

military targets and the civilian population and civilian objects in southern Israel. The

main findings of the final report were that Israeli armed forces clearly violated interna-

tional humanitarian law. For example, in a number of specific cases they launched

direct attacks against civilians with lethal consequences without any military justifica-

tion for doing so. Further violations included the use of human shields and the de-

struction of civilian infrastructure not to be justified on military grounds589. The experts

concluded that these attacks “amounted to reprisals and collective punishment and

constitute war crimes”590.

Besides the establishment of fact finding missions, the Council occasionally

appoints a special rapporteur to examine the situation of human rights in certain

countries or regions: compliance with humanitarian law is often one of the most

pressing issues591. Such rapporteurs have been named (appointed) for several coun-

tries: among them, Afghanistan, El Salvador, Kuwait, Rwanda and the territories oc-

588 The Government of Egypt made it possible for the members of the Commission to enter Gaza through the

Rafah crossing.

589 For more details on the Mission’s findings, in particular on the question of whether the principle of military

necessity had been violated, see Chapter Two, I. D. of this book, on the cardinal principle of military neces -

sity.

590 Cf. Human Rights Council, Statement by Richard Goldstone on behalf of the Members of the United Nations

Fact-Finding Mission on the Gaza Conflict, 29 September 2009, available at: <http://www2.ohchr.org/eng-

lish/bodies/hrcouncil/specialsession/9/FactFindingMission.htm>, accessed August 2010; see also Report of

the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc. A/HRC/12/48,

for a summary of the Mission’s legal findings, please see paras 1918-1956; for the Mission’s recommenda-

tions on the follow-up to the report, please see the remarks on the implementation of international humanit-

arian law in the chapter of this book titled Outlook.

591 H.P. Gasser, op. cit., supra note Error: Reference source not found, p. 280.

281

cupied by Israel. These inquiries conducted by special rapporteurs take the form of

“fact-finding” missions when violations of international humanitarian law are al-

leged592. These fact-finding activities are yet another way of promoting compliance

with humanitarian law.

C. The Secretary-General

Under the UN Charter, the Secretariat is principally conceived as the organiz-

ation’s administrative body. Art 97 defines the Secretary Genearl as “the chief admin-

istrative officer of the Organization”.593 However, the influence of the Secretary-Gen-

eral is not at all limited to administrative or organizational tasks, his actual political

power reaching far beyond them.594 Unifying several functions within one person (dip-

lomat, advocate, civil servant and CEO), the Secretary-General has become a polit-

ical player at the world stage whose role has increased according to the growing re-

sponsibilites of the World Organization. He is supposed to be a symbol of United Na-

tions values and to represent the interests of the world's peoples, in particular the

most among them. Inevitably, he plays an important role in the promotion and imple-

mentation of international humanitarian law.

Art 98 and Art 99 of the Charter paved the way for an active role of the Sec-

retary-General in almost every aspect of the UN's activities. Art 98 provides that the

Secretary-General also shall perform “other functions as are entrusted to him” imply-

ing additional non-administrative and political duties. According to Art 99, he “may

bring to the attention of the Security Council any matter which in his opinion may

592 H.P. Gasser, op. cit., supra note Error: Reference source not found, p. 80.

593 D. Thürer, “Die Schweiz und die Vereinten Nationen”, in A. Riklin et al. (eds), Neues Handbuch der

schweizerischen Aussenpolitik, Vol. 11, Bern, Haupt, 1992, p. 319.

594 See M. Chr. Bourloyannis, “Fact-Finding by the Secretary-General of the United Nations“, New York

University Journal of International Law and Politics, Vol. 22 (1989-1990), pp. 171 et seq.

282

threaten the maintenance of international peace and security”. Even if the Secretary-

General has not made extensive use of this right in the past, a competence of invest-

igation of armed conflicts is implicitely included in the meaning of this article providing

him with additional power in the humanitarian field. Of course, the Secretary-General

would never be successful in his actions, if he did not take careful account of the in-

terests and concerns of Member States, but at the same time he has to uphold the

values and moral authority of the United Nations. Thus, all previous Secretaries-Gen-

eral have understood their political responsibilities in a broad sense. Considering

themselves as speakers for and actors and guardiens of peace and the values of the

Charter, they all developed means and methods of conflict prevention and resolu-

tion595. Indeed, they became involved in the major disputes during their respective

tenures, often being at the risk of challenging or disagreeing with some powerful

Member States.

Thus, many important developments in the humanitarian field have been initi -

ated, promoted or further strengthened by Secretaries-General in the past, as they

undertook wide-ranging and successful diplomatic initiatives to settle down disputes

throughout the world. Their independency and impartiality, sometimes combined with

a special charisma of the incumbent, allow them to act as real peacemakers and to

embody the humanitarian conscience of mankind.

Nowadays, a major pillar of the UN’s efforts to assure international peace

and security are peace-keeping missions in conflict areas all over the world. Mainly

conceived by the second Secretary General Dag Hammarskjöld on the occasion of

the 1956 Suez crises, this means of peace activity had not been foreseen by the

drafters of the Charter. As shown above, the mission’s tasks and responsibilites have 595 See T. M. Franck, “The Secretary-General’s Role in Conflict Resolution: Past, Present and Pure

Conjecture”, European Journal of International Law, Vol. 6 (1995), pp. 360 et seq.; M. Chr. Bourloyannis,

op. cit., supra note Error: Reference source not found, p. 645.

283

been subsequently specified and expanded in the following decades596. They may

thus serve as an example of the dynamic development of UN law and practice by the

institution’s “administrative” body.

Another important means of promoting humanity, human rights and humanit-

arian law is the Secretary General’s reporting activity. He has the duty to report to the

other UN main organs (General Assembly, Security Council and Ecosoc) either peri-

odically or upon request. Some of these documents have become very significant for

the development of humanitarian law, e.g. Boutros Boutros-Ghali’s report “An

Agenda for Peace”597 that analysis and recommends ways of strengthening and mak-

ing more efficient the capacity of the UN for conflict prevention, peacemaking and

peace-keeping or Kofi Annan’s final report “In Larger Freedom”598 development to

achieve development, security and human rights setting out a program to achieve de-

velopment, security and human rights and to reform the UN system. As to the devel-

opment of humanitarian law in particular, a number of documents are relevant. In

1968, the General Assembly recommended that the Secretary-General, after consult-

ing with the ICRC, should bring to the attention of all members of the United Nations

the existing rules of international humanitarian law.599 He should urge them to ensure

that civilians and combatants 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 from the dictates of public conscience". Moreover, at the Gen-

eral Assembly's request, the Secretary-General of the United Nations reports period-

ically on the state of acceptance of the Additional Protocols of 1977. In 1999, the

596 M. Chr. Bourloyannis, op. cit., supra note Error: Reference source not found, pp. 643 et seq.

597 Report of the UN Secretary-General of 17 June 1992, UN Doc. A/47/277 - S/24111.

598 Report of the UN Secretary-General of 21 March 2005, UN Doc. A/59/2005.

599 UN General Assembly Resolution. 2444 (XXIII), 19 December 1968.

284

Secretary-General issued his bulletin on the “Observance by United Nations forces of

international humanitarian law”.600

In addition, the Secretary-General fulfils an important role as the the direct

superior of the High Commissioner of Human Rights, the principle human rights offi-

cial of the UN who is responsible for all the activities of the Office of the United Na-

tions High Commissioner for Human Rights. His competences are closely connected

to those of the Secretary-General. As the High Commisioner is directly accountable

to the Secretary-General and advises him on the policies of the UN in the area of hu-

man rights, the two bodies have to cooperate closely. Mandated to “play an active

role in removing the current obstacles and in meeting the challenges to the full realiz-

ation of all human rights and in preventing the continuation of human rights violations

throughout the world”601 the High Commisioner is implicitly mandated to take an act-

ive part in the prevention of violations against international humanitarian law.

D. The International Court of Justice

The International Court of Justice (ICJ) was established in 1945 to succeed

the Permanent Court of International Justice. Although there had been international

or regional courts before the ICJ, humanitarian law almost never played a part in judi -

cial proceedings in the international sphere, with the significant exception of the

Nuremberg and Tokyo International Military Tribunals. The Nuremberg Tribunal was

assigned the task, inter alia, of punishing German war criminals who had committed

breaches of the Hague Conventions during the Second World War. In 1945, the

600 UN Doc. ST/SGB/1999/13.

601 UN General Assembly Resolution, High Commisioner for the promotion and protection of all human rights,

7 January 1994, UN Doc No A/Res/48/141, para. 4 (f).

285

Nuremberg Tribunal had already found that the humanitarian rules included in the

Regulations annexed to the Hague Convention IV of 1907 “were recognised by all

civilised nations and were regarded as being declaratory of the laws and customs of

war.”602

With the establishment of the Internatonal Court of Justice, the attitude to in-

ternational humanitarian law on the international judiciary level began gradually to

change: it was no longer disregarded to the same extent. In its early years, the ICJ

did not refer to humanitarian law in its judgments or advisory opinions, but this began

to change in the Eighties. The ICJ has significantly influenced the development of hu-

manitarian law in a number of ways: by establishing the formula of “elementary con-

siderations of humanity” and confirming the customary nature of humanitarian law

treaties, and by treating the fundamental principles of humanitarian law as a sort of

humanitarian jus cogens. These matters will be further examined in the pages that

follow:

a) “Elementary considerations of humanity”: International humanitarian law as customary law

Fairly early in its existence - in the Corfu Channel case of 1949 - the Court in-

troduced the notion of “elementary considerations of humanity”603, a reference to cer-

tain general and well-recognized principles of humanitarian law. This concept has

been reiterated several times in later decisions, especially in the Nicaragua case of

1986, where the Court held that Article 3 common to the four Geneva Conventions

(common Article 3) “reflect(s) what the Court in 1949 called ‘elementary considera-

602 Trial of the Major War Criminals before the International Military Tribunal, 14 November 1945-1 October

1946, Nuremberg, 1947, Vol. 1, para. 254.

603 ICJ, Corfu Channel Case, Judgment of 9 April 1949, ICJ Reports 1949, p. 22.

286

tions of humanity’”604. The influence of the Corfu Channel decision, on the develop-

ment of humanitarian law, was not limited to the introduction of this concept. By ac-

knowledging the declaratory character of some specific provisions of the Hague Con-

vention of 1907, the Court implicitly affirmed the existence of a body of customary

rules in humanitarian law.605

This jurisprudence was further developed in Case concerning Military and

Paramilitary Activities in and against Nicaragua, the first judgment in which the ICJ

paid especial attention to humanitarian law, especially to the four Geneva Conven-

tions. As mentioned above, this judgment explicitly clarified that common article 3 re-

flects “elementary considerations of humanity.” The Court also stated that common

Article 3 was applicable not only to internal conflicts, but that it also “constitutes a

minimum yardstick” for international armed conflicts, one that had to be respected re-

gardless of the circumstances606. And most importantly, even though the judgment fo-

cuses mainly on common Articles 1 and 3, it seems to postulate the customary

nature of the greater part of their provisions by referring to the fundamental general

principles of humanitarian law607.

In Legality of the Threat or Use of Nuclear Weapons, an advisory opinion, the

Court again justified its jurisprudence with respect to the customary nature of human-

604 ICJ, Militarv and Paramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America),

Merits, Judgment of 27 June 1986, ICJ Reports 1996, p. 14. para. 218.

605 V. Chetail, “The contribution of the International Court of Justice to international humanitarian law”,

International Review of the Red Cross, Vol. 85, No. 850 (2003), p. 243.

606 ICJ, Militarv and Paramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America),

Merits, Judgement of 29 June 1986, supra note Error: Reference source not found, para. 218.

607 V. Chetail, op. cit., supra note Error: Reference source not found, p. 244.

287

itarian law. It did so by reaffirming the importance of humanitarian values, which the

law of armed conflict is based on, and also by citing declarations of other interna-

tional bodies (e.g. the Nuremberg International Military Tribunal and the Report of the

Secretary-General of 1993 introducing the Statute of the International Criminal

Tribunal for the former Yugoslavia) that provide evidence of the transformation of

conventional into customary law. The Court concluded its advisory opinion with the

finding that:

“The extensive codification of humanitarian law and the extent of the accession

to the resultant treaties, as well as the fact that the denunciation clauses that

existed in the codification instruments have never been used, have provided the

international community with a corpus of treaty rules the great majority of which

had already become customary and which reflected the most universally recog-

nized humanitarian principles.”608

b) jus cogens and erga omnes norms

In addition, the jurisprudence of the ICJ, which defined some fundamental

principles of humanitarian law as a sort of jus cogens, must be mentioned: Whilst the

concept of jus cogens is an essential aspect of general international law, the term is

not commonly used in humanitarian law. The ICJ has undertaken several steps to es-

tablish a similar, if not identical, concept:609 First, in “Reservations to the Convention

on the Prevention and Punishment of the Crime of Genocide”, an advisory opinion,

the ICJ recognized the outlawing of genocide as a quasi-obligation erga omnes

norm: “in such a convention the contracting States do not have any interest of their

608 ICJ, “Legality of the Threat or Use of Nuclear Weapons”, Advisory opinion, 8 July 1996, supra note Error:

Reference source not found, para. 82; Cf. V. Chetail, op. cit., supra note Error: Reference source not found,

pp. 245 et seq.

609 V. Chetail, op. cit., supra note Error: Reference source not found, pp. 247 et seq.

288

own; they merely have, one and all, a common interest, namely, the accomplishment

of those high purposes which are the raison d’être of the convention. Consequently,

in a convention of this type one cannot speak of individual advantages or disadvant-

ages to States, or of the maintenance of a perfect contractual balance between rights

and duties. The high ideals which inspired the Convention provide, by virtue of the

common will of the parties, the foundation and measure of all its provisions.”610

This reasoning, implying the existence of a set of core principles and provi-

sions in humanitarian law from which States cannot derogate, has been reiterated

more recently in Case concerning Application of the Convention on the Prevention

and Punishment of the Crime of Genocide. Here, the Court refers explicitly to the

concept of erga omnes norms: “… the principles underlying the Convention are prin-

ciples which are recognized by civilized nations as binding on States, even without

any conventional obligation.”611 This leads to the conclusion that “… the rights and

obligations enshrined by the convention are rights and obligations erga omnes.”612

Likewise, in its Wall Opinion the Judges refered to certain erga omnes obligations un-

der international humanitarian law that had been violated by the State of Israel.613

The Court recalled its statement in the Advisory Opinion on the LegaIity of the Threat

or Use of Nucleur Weapons, according to which

610 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide“, Advisory

opinion, 28 May 1951, ICJ Reports 1951, p. 23.

611 ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, Preliminary Objections, Judgment of 11 July 1996,

ICJ Reports 1996, p. 616, para. 31.

612 Ibid., p. 616, para. 31.

613 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory

Opinion of 9 July 2004, ICJ Reports 2004, p. 67, para. 155.

289

" ‘a great many rules of humanitarian law applicable in armed conflict are so funda-

mental to the respect of the human person and ‘elementary considerations of humanity'

. . .’, that they are ‘to be observed by all States whether or not they have ratified the

conventions that contain them, because they constitute intransgressible principles of in-

ternational customary law’.”614

The Court is of the view that “these rules incorporate obligations which are essen-

tially of an erga omnes character”.615 It referred to Art 1 of the Fourth Geneva Con-

vention, according to which all State parties “undertake to respect and to ensure re-

spect” for the Convention in all circumstances and added: “It follows form that provi-

sion that every State party to that Convention, whether or not it is a party to a specific

conflict, is under an obligation to ensure that the requirements of the instruments in

question are complied with”616. In this Advisory Opinion on the Legal Consequences

of the Construction of a Wall in the Occupied Palestinian Territory, the Court very

concretely reminded States that they are “under an obligation not to recognize the il-

legal situation resulting from the construction of the wall […] not to render aid or as -

sistance in maintaining the situation created by such construction [… and] to ensure

compliance by Israel with international humanitarian law as embodied in [the Fourth

Geneva Convention relative to the Protection of Civilian Persons in Time of War]”617.

The Court seemed to be more reluctant to declare jus cogens with respect to

the conduct of hostilities and to protection for victims of armed conflicts. In the advis-

ory opinion on the “Legality of the Threat or Use of Nuclear Weapons” the Court

614 cf. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports

1996, p. 257, para. 79.

615 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory

Opinion of 9 July 2004, ICJ Reports 2004, p. 67, para. 157.

616 Ibid., p. 68, para. 158.

617 Ibid., p. 68, para. 159.

290

made no direct reference to the relevance of jus cogens in humanitarian law, missing

an opportunity to build on previous decisions and strengthen the concept of jus co-

gens in humanitarian law. However, the Court recognized the existence of “intrans-

gressible principles of international customary law”618, implying that no State may

derogate from them. Thus, the Court introduced a new term in humanitarian law, one

that seems to resemble jus cogens619.

It is the Court’s opinion that such principles are also applicable to various re-

cently developed weapons. On the subject of nuclear weapons, the Court has stated

that:

“… it cannot be concluded (…) that the established principles and rules of humanitarian

law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion

would be incompatible with the intrinsically humanitarian character of the legal prin-

ciples in question which permeates the entire law of armed conflict and applies to all

forms of warfare and to all kinds of weapons, those of the past, those of the present

and those of the future. In this respect it seems significant that the thesis that the rules

of humanitarian law do not apply to the new weaponry, because of the newness of the

latter, has not been advocated in the present proceedings. On the contrary, the new-

ness of nuclear weapons has been expressly rejected as an argument against the ap-

plication to them of international humanitarian law …”620

c) Assessment

618 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, supra note Error:

Reference source not found, p. 257, para. 79.

619 Cf. A.A.C. Cançado Trindade, "International law for humankind: Towards a new jus gentium”, Recueil des

cours, Vol. 316 (2005).

620 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, supra note Error:

Reference source not found, para. 86.

291

Though it is often described as the most significant international court, the ICJ

has dealt with only a few cases in the field of humanitarian law621. But this should not

be misinterpreted: the ICJ’s judgments and advisory opinions have often broken new

ground, as the examples given above demonstrate. States are finding it increasingly

difficult to derogate from the ICJ’s practice; because of this, its jurisdiction and advis-

ory opinions may have an even greater impact on the development and promotion of

humanitarian law.

III. Regional organizations promoting international humanitarian law

It is not only on the global level that actors crucial to the promotion and devel-

opment of international humanitarian law are to be found: regional institutions that

are relevant to humanitarian law exist throughout the world - in America, Africa, Asia,

Australia and Europe. For reasons of space I will limit myself to two European institu-

tions, the European Union and the Council of Europe. They are very different net-

works within the broader context of global government.

A. The European Union

As the UN the European Union had, in its early days, a somewhat distant rela-

tionship to international humanitarian law. The European Union and its predecessor,

the European Community, initially focused on economic and political questions and

began to deal with human rights issues only afterwards, and gradually. It was not un-

621 Besides the cases that have been mentioned, the ICJ had to assess breaches of humanitarian law in

Democratic Republic of Congo v. Uganda (Judgment of 19 December 2005, ICJ Reports 2005) and in

Bosnia and Herzegovina v. Serbia and Montenegro (Judgment of 26 February 2007, ICJ Reports 2007).

292

til the late 1980s that the organization began to take into account the convergence of

various branches of international law, including humanitarian law. The conflict in the

former Yugoslavia and the Gulf War in 1991 were the turning points.622 Since then,

the European Union has referred to international humanitarian law on a regular basis.

Today the European Union deals with international humanitarian law on three levels:

the political and legal, the financial and the operational.

One of the principal challenges to the application of international humanitarian

law in contemporary situations of warfare remains the lack of political will by parties

to armed conflicts to respect international humanitarian law and to prevent its viola-

tions. Luis Michel, the former European Commissioner on International Cooperation,

Humanitarian Aid and Crisis Response, requires the European Union to take a lead-

ing role in enforcing this will of the international community enforcing this will of the

international community:

“Il est clair que l’Union européenne peut et doit exercer un rôle de premier plan

pour faire mieux respecter le droit humanitaire, à la mesure de son autorité poli-

tique et morale reconnue. Il en va du respect par l’Union Europénne de ses

propres valeurs éthiques fondamentales».623

During the last five years, the European Union therefore undertook major steps con-

cerning its politics on international humanitarian law: In December 2005 the Council

of the European Union adopted the European Union Guidelines promoting compli -

ance with international humanitarian law624. The Guidelines are the basis for the

622 Cf. T. Ferraro, “Le droit international humanitaire dans la politique étrangère et de sécurité commune de

l’Union européenne“, International Review of the Red Cross, Vol. 84, No. 846 (2002), pp. 437 et seq.

623 Speech by M. L. Michel at the conference on “Promoting Compliance with International Humanitarian Law:

A Major Challenge, A Global Responsibility” at the European Parliament on 16 September 2008.

293

European Union.625 Union to incorporate international humanitarian law as a core

consideration of its Common Foreign and Security Policy and of the Union’s relations

with third States.626 A second landmark in this context was the European Consensus

on Humanitarian Aid.627 The Consensus can be seen as a common vision guiding all

common European Politics on humanitarian aid. The document names as a common

objective “to provide a needs-based emergency response aimed at preserving life,

preventing and alleviating human suffering and maintaining human dignity wherever

the need arises if governments and local actors are overwhelmed, unable or unwilling

to act”.628 While doing so all European Union actors are firmly committed to uphold

and promote the fundamental principles of humanity, neutrality, impartiality and inde-

pendence. The Consensus further states, that the European Union will strongly and

consistently advocate for the respect of international law, including international hu-

manitarian law and it refers to the Guidelines mentioned above and the commitment

to operationalise them in the external relations of the European Union.

624 See European Union Doc. 2005/C 327/04 of 23 December 2005 and European Union Doc. 2009/C 303/06 of

15 December 2009 (updated Guidelines) , available at: <http://eur-lex.europa.eu>, accessed August 2010.

625 See European Union Doc. 2005/C 327/04 of 23 December 2005 and European Union Doc. 2009/C 303/06 of

15 December 2009 (updated Guidelines) , available at: <http://eur-lex.europa.eu>, accessed August 2010.

626 Such as identifying situations in which international humanitarian law must be applied without any delay,

monitoring those situations; compliance with law. See Guidelines, op. cit., supra note Error: Reference

source not found, paras 15 and 16. For an analysis of the implementation of the Guidelines, see P. Wrange,

“The EU Guidelines on promoting compliance with international humanitarian law”, Nordic Journal of

International Law, Vol. 78 (2010), pp. 541 – 552.

627 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting

within the Council, the European Parliament and the European Commission, European Union Doc. No.

2008/C 25/01 of 30 January 2008.

628 Joint Statement, op. cit., supra note (Error: Reference source not found), para. 8.

294

Next to these general pillars, different institutions of the European Union seem

very likely to incorporate international humanitarian law into their mandates. The

European Council e.g. adopted some key instruments in the context of means and

methods of warfare, like a European Strategy against the proliferation of Weapons of

Mass Destruction629. The newly built position of a High Representative of the Union

for Foreign Affairs and Security Policy is another good example. He or she can and

should endorse and strongly advocate the application of international humanitarian

law630. Also the European Parliament offers a good forum to bring up and discuss

themes relating international humanitarian law631.

The second level of the Union’s contribution to international humanitarian

law has a financial character. The European Union – according to internal sources -

629 Council of the European Union, European Union Strategy against proliferation of Weapons of Mass De-

struction, European Union Doc. No. 15656/03 of 10 December 2003. Currently there are ongoing Council

Joint Actions in support of the International Atomic Energy Agency, the Organisation for the Prohibition for

Chemical Weapons and the Comprehensive Nuclear-Test-Ban Treaty Organisation. The adoption of the

European Union Strategy to combat illicit accumulation and trafficking of Small Arms and Light Weapons

and their ammunition is part of the same process: Council of the European Union, European Union Doc. No.

13066/025 of 13 January 2006. See also the European Union’s pledges related to international humanitarian

law – its development and respect for it - undertaken at the 30th International Conference of the Red Cross

and Red Crescent, available at: <http://www.icrc.org>, accessed August 2010.

630 As an example see the Declaration by the High Representative C. Ashton on behalf of the European Union

on the Israeli military operation against the Flotilla. European Union Doc. No. 10485/1/10 REV 1 of 3 June

2010.

631 See European Parliament, resolution P7_TA-PROV(2010)0066 of 11 March 2010 on the case of the captive

soldier Gilad Shalit, where the European Parliament refers to the Third Geneva Concention and Common

Article 3 of the Geneva Conventions; European Parliament, resolution P7_TA-PROV(2010)0054 of 10

March 2010 on the implementation of the Goldstone recommendations on Israel/Palestine, referring to

various bodies and documents of international humanitarian law.

295

is the world’s leading aid donor632. It provides 55% of international humanitarian aid.

Of this amount, 30% comes from the ECHO and 25% directly from Member States.

ECHO transfers those funds to others, such as various UN agencies, NGOs and the

ICRC. The financial aid follows the principle of “Good Humanitarian Donorship”, listed

as one of the common principles and good practices in the European Consensus633.

The third level of the European Union referring to international humanitarian

law is the operational one. Several forces of the Union are placed in conflict zones

during or after an armed conflict. Their mandates cover humanitarian missions,

peace keeping and peace enforcement634.

In the last few years, the European Union regularly calls upon all warring

parties to comply with the standards of international humanitarian law and has con-632 European Commission on Humanitarian Aid and Civil Protection’s average annual budget in recent years

has been around 700 million Euros. See: <http://ec.europa.eu/echo/index_en.htm>, accessed August 2010.

633 See op. cit., supra note (Error: Reference source not found), para. 18, following the Principles and Good

practice of Humanitarian Donorship, Stockholm, 17 June 2003, endorsed by the Organisation for Economic

Cooperation and Development-Development Assistance Committee in April 2006. For concrete examples

and case studies see the Study on the Mapping of Donor Coordination (Humanitarian Aid) at the Field Level

of European Commission on Humanitarian Aid and Civil Protection, European Union Doc. No.DG ECHO/

ADM/BUD/200X/012XX of 2 July 2009.

634 At the European Council in Feira in June 2000 the European Union created a civilian peacekeeping force to

help manage crisis situations and control conflicts in countries external to European Union borders. Up to

5000 specially trained personnel drawn from police forces across Europe built the new peacekeeping force,

1400 of them could be available for rapid deployment within 30 days. There is also the European Operational

Rapid Force, a multinational rapid reaction force composed of forces from France, Italy, Portugal and Spain.

With the merger of several WEU elements into the European Union, the European Operational Rapid Force

has by and large become part of the Common Security and Defence Policy. Common missions operated in

2003 in the Former Yugoslav Republic of Macedonia and Bosnia and Herzegovina.

296

sistently condemned breaches of humanitarian law in conflicts like those in Afgh-

anistan, Iraq, Chechnya or Sierra Leone635. The Union also had a clear position in fa-

vour of the establishment of the ICC636. Jakob Kellenberger, President of the ICRC,

sees the main challenge of the European Union in determining appropriate mechan-

isms and courses of action in order to put in practice the legal instruments in exist-

ence637.

«La communauté international a un nom, c’est l’humanité. Forger pour cette humanité

des valeurs communes fortes et justes, partagées par tous, en faire les repères intan-

gibles d’une éthique universelle, c’est mon ambition, c’est l’ambition européenne, cela

doit être notre engagement»638.

B. The Council of Europe

The main purposes of the Council of Europe, which was established in 1950,

are to protect human rights, the rule of law and democracy639. The Council has played

an outstanding role in the development and promotion of human rights throughout

Europe and beyond it. Its most notable achievements are the drafting of the

European Convention of Human Rights and the creation of the European Court of

Human Rights, a unique mechanism for ensuring judicial protection of human rights

635 Cf. “EU Declaration on the report of the UN inquiry into human rights violations in the Democratic Republic

of Congo”, Bulletin EU 7/8-1998, Common Foreign and Security Policy (13/25), available at: <http://

europa.eu/bulletin/en/9807/p104013.htm>, accessed August 2010.

636 See the Union’s Common Position on the ICC, European Union Doc. No. 2003/444/CFSP of 16 June 2003.

637 Speech by J. Kellenberger, President of the International Committee of the Red Cross, at the conference on

“Promoting Compliance with International Humanitarian Law: A Major Challenge, A Global Responsibility”

at the European Parliament on 16 September 2008.

638 L. Michel, op. cit., supra note (Error: Reference source not found).

639 Preamble and Art. 1(a) of the Statute of the Council of Europe.

297

on the international level. The Council’s main area of involvement is the protection of

human rights. However, certain institutions of the Council of Europe also concern

themselves with international humanitarian law. After all, as the preamble to its Stat-

ute declares, the Council pursues world peace based on justice. In Chapter III, we

examined the practices of the European Court of Human Rights with regard to inter-

national humanitarian law. Most of the other institutions of the Council of Europe also

play a role of one kind or another in the promotion of humanitarian law.

Like the bodies of the United Nations, the International Court of Justice and

the European Union, the Council of Europe began to take heed of international hu-

manitarian law only a couple of decades after its founding. Since the 1980s, institu-

tions of the Council - the Parliamentary Assembly, the Committee of Ministers, and

sub-Committees of both bodies - have referred to humanitarian law on a regular

basis. They emphasize the importance of the Geneva Conventions, monitor the hu-

man rights situations in war zones, call upon all warring parties to comply with the

standards of humanitarian law and condemn breaches of humanitarian law in specific

conflicts640. A case in point is the European Commission for Democracy through Law,

better known as the Venice Commission, which - in its Opinion of 12–13 December

2003 on “The Possible Need for Further Development of the Geneva Conventions” –

examined various questions concerning the further refinement of the founding prin-

ciples of international humanitarian law641. It gave particular attention to whether hu-

manitarian law in its present state was capable of dealing adequately with the new

640 See, e.g., press release 338d (2002) of 26 June 2002, concerning the situation in the Middle East; press re -

lease 635d (03) of 11 December 2003, concerning the Caucasus; and press release 151d (2003) of 20 March

2003, concerning the war in Iraq.

641 See Opinion CDL-AD (2003) 018, available at: <www.venice.coe.int/docs/2003/CDL-AD(2003)018-f.pdf>,

accessed August 2010.

298

forms of terrorism and whether terrorists should not enjoy complete protection under

humanitarian law. The Commission concluded that when it is applied correctly, exist-

ing humanitarian law affords adequate protection in the fight against terrorism. That

is, it saw no urgent need for further development of the Geneva Conventions, but it

also did not intend to discourage the development of humanitarian law642.

IV. The role of non-governmental organizations in international humanit -

arian law

Non-governmental organizations (NGOs) working in the area of international

humanitarian law have functions similar to those working in other areas. In general,

their tasks are: monitoring, opinion making, standard-setting, fact-finding, and expos-

ing violations643. In a way, NGOs represent “international civil society” or “world opin-

ion”644. For the purposes of humanitarian law, the public exposure of violations is an

important and influential supplement to the powerful but discreet activities of the 642 See Opinion CDL-AD (2003) 018, Conclusion, available at: <www.venice.coe.int/docs/2003/CDL-

AD(2003)018-f.pdf>, accessed August 2010.

643 Cf. T. Buergenthal and D. Thürer, Menschenrechte – Ideale, Instrumente, Institutionen, Zurich, Dike Verlag,

2010, pp. 171 et seq.; see also D. Thürer, “The emergence of non-governmental organizations and transna-

tional enterprises in international law and the changing role of the state”, in R. Hofmann and N. Geissler

(eds), Non-State Actors as New Subjects of International Law, Berlin, Duncker and Humblot, 1999; By its

own account, Human Rights Watch has, for more than two decades, “monitored and reported on violations of

IHL in numerous armed conflicts, including Iraq (1991) and Yugoslavia (1999)”; Cf. Human Rights Watch,

International Humanitarian Law Issues and the Afghan Conflict, Open Letter to North Atlantic Treaty Or-

ganization (NATO) Defense Ministers, 17 October 2001, available at: <www.hrw.org>, accessed August

2010.

644 K. Anderson, “The Ottawa Convention banning landmines: The role of international non-governmental or-

ganizations and the idea of international civil society”, European Journal of International Law, Vol. 11

(2000), pp. 91 et seq., p. 110.

299

ICRC645. As one of the first NGOs to involve itself with issues of international humanit-

arian law, Médecins Sans Frontières has nearly four decades of experience in monit-

oring compliance with humanitarian law; this NGO emerged from the Red Cross

Movement after the Biafra War in the late sixties; it defined the humanitarian space in

which it acts in a similar way as the Red Cross but instead of choosing discretion in

order to better serve the victims its policy is to speak out about what it witnessed in

the field.646. Human Rights Watch, Amnesty International, and others have also made

considerable contributions to expert and public reporting, analysis and advocacy647.

As a result of the efforts of NGOs, public interest in and understanding of humanit -

arian law has grown significantly in recent years648.

While some NGOs are concerned with the legal framework of international hu-

manitarian law, others provide humanitarian assistance to civilian populations649. I

would like to focus on organizations of the former type. They often link various

branches of law - humanitarian law, human rights law, refugee law and others that

645 R. Brett, “The role of NGOs”, in International Institute of Humanitarian Law (ed.), 28th Round Table on

Current Problems of IHL: Human Dignity and Protection in Armed Conflict: Strengthening Measures for the

Respect and Implementation of International Humanitarian Law and other Rules, 2004, p. 40.

646 R. Brauman, Humanitaire – Le dilemme, Paris, Textuel, 1996, p. 21.

647 D. Pokempner, “Recognizing and furthering the role of NGOs in IHL”, in International Institute of Humanit-

arian Law (ed.), 28th Round Table on Current Problems of IHL: Human Dignity and Protection in Armed

Conflict: Strengthening Measures for the Respect and Implementation of International Humanitarian law

and other Rules, 2004, p. 48.

648 NGOs have worked hard to make humanitarian law more accessible to the media than ever before. For in-

stance, Human Rights Watch hosts media training sessions, posts information on the Internet for members of

the media and provides information to journalists. See D. Pokempner, op. cit., supra note Error: Reference

source not found, p. 49.

649 D. Pokempner, op. cit., supra note Error: Reference source not found, p. 47.

300

are pertinent - whereas the “institutional guardians” of each of these bodies of law

specialize in their particular areas650. NGOs introduced humanitarian considerations

into disarmament negotiations and achieved astonishing results. Furthermore,

NGOs are particularly keen to create networks of organizations working in the same

or in similar areas. But they also try to link up actors of many different kinds. In inter-

national humanitarian law, the growing association between NGOs and professional

military analysts and theorists is one example. For instance, during the Gulf Wars,

and in Kosovo and Iraq, Human Rights Watch produced sophisticated and influential

bomb damage assessments in order to juxtapose the conduct of war with standards

of humanitarian law such as the principles of proportionality and the prohibition

against the infliction of unnecessary suffering651.

Let me give two examples of NGOs’ efforts bearing fruit: the result in both

cases was a total ban on weapons whose use was widespread and of long standing.

A. Banning anti-personnel mines 652

The Convention on the Prohibition of the Use, Stockpiling, Production and

Transfer of Anti-Personnel Mines and on Their Destruction, also known as the Ott -

awa Convention or the Mine Ban Treaty, was adopted by the Diplomatic Conference

650 R. Brett, op. cit., supra note Error: Reference source not found, p. 40.

651 D. Pokempner, op. cit., supra note Error: Reference source not found, pp. 48 et seq; See, e.g., Human Rights

Watch, Cluster Munitions and the Proportionality Test, April 2008, available at: <www.hrw.org>, accessed

August 2010.

652 D. Thürer, “Modernes Völkerrecht: Ein System im Wandel und Wachstum – Gerechtigkeitsgedanken als

Kraft der Veränderung,” in D. Thürer, Völkerrecht als Fortschritt und Chance, Zurich, Dike Verlag, 2009,

pp. 65 et seq.

301

on a Total Ban of Anti-Personnel Land Mines at Oslo on 18 September 1997. It was

opened for signature in Ottawa on 3 December 1997 and entered into force on 1

March 1999, half a year after the 40th instrument of ratification had been deposited.

The International Campaign to Ban Landmines (ICBL) played an important

role in the adoption of the treaty. The campaign was launched in 1992 by a group of

six NGOs: Handicap International, Human Rights Watch, Medico International, Mines

Advisory Group, Physicians for Human Rights and Vietnam Veterans of America

Foundation. Having witnessed the appalling destruction wrought by anti-personnel

mines on the communities in which they were working, these NGOs were determined

to bring about a comprehensive solution to the issue. The formation of ICBL enabled

them to coordinate their activities653. At the time, the movement did not expect to

have the impact that it did. As Jody Williams, who won the Nobel Peace Prize (to-

gether with ICBL) in 1997, wrote a few years later: “When the [ICBL] was formally

launched in October of 1992, few imagined that the grassroots movement would cap-

ture the public imagination and build political pressure to such a degree that, within

five years, the international community would come together to negotiate a treaty

banning antipersonnel landmines.”654 The campaign grew steadily after its inception -

it would eventually include 1,400 NGOs - and was conducted in more than 90 coun-

tries. Williams described it in this way:

653 For more details, see: <www.icgl.org>, accessed August 2010. The ICRC never formally joined the

coalition, but fully supported it; Cf. K. Anderson, op. cit., supra note Error: Reference source not found, pp.

91 et seq., p. 105.

654 J. Williams, “The International Campaign to Ban Landmines: A model for disarmament initiatives?” 3

September 1999; The full text is available at the official website of the Nobel Foundation: <http://nobel-

prize.org>, accessed August 2010.

302

“The overall strategy of the International Campaign has always been to press for na-

tional, regional and international measures to ban landmines - and in the post-Treaty

period, to insure its universalization, implementation and Treaty compliance. Because

the Campaign is a loose coalition, spread all over the world and working at a number of

levels, clear and consistent communication has been critical to its success.”655

Another crucial point was the fact that NGOs changed the nature of the debate

- considerations of political and State security were displaced by those of humane

values - drawing the attention of the media and the general public to the issue, and

ultimately educating States about the limited military usefulness and the appalling

consequences of the use of landmines656. They argued that every day 70 persons

were badly injured, or even killed, by landmines; the great majority of these were ci-

vilians whose lives were being imperilled years after hostilities had ended. The ICRC,

with its expertise in this area, played a prominent role in this campaign.

More than 10 years after the Convention’s entry into force, the ICBL is still act-

ive, and lobbying for: “Implementation of the Convention (i.e. reporting by States

Parties, destruction of stockpiled mines, adoption of national implementation meas-

ures such as legislation and financial assistance for mine clearance and victim assist-

ance); Humanitarian mine action programmes that are geared to address the needs

of mine-affected communities; Support for landmine survivors, their families, and

communities to enable them to deal with the immediate aftermath of an injury and the

medium- and long-term consequences; Universal membership and the promotion of

the spirit of the Convention through lobbying of non-members and of armed opposi-

655 J. Williams, op. cit., supra note Error: Reference source not found.

656 K. R. Rutherford, "The evolving arms central agenda: Implications of the role of NGOs in banning anti-per-

sonnel landmines", World Politics, Vol. 53 (2000), pp. 74 et seq., p. 77; See also, K. Anderson, op. cit., supra

note Error: Reference source not found, pp. 91 et seq., p. 105.

303

tion groups to halt mine use, production or transfer, wherever this takes place.”657 The

ICBL and other NGOs pursue these goals by actively participating in inter-State (re-

view) processes, cooperating with the media, organizing public events, undertaking

research and monitoring implementation of and compliance with the Convention658.

NGOs play a crucial role in pushing for universal acceptance of international

conventions and compliance with their provisions. They monitor and, when neces-

sary, condemn and stigmatize breaches of international law, forcing States and the

international community into action.

B. Banning cluster munitions

The Convention on Cluster Munitions, which was adopted in Dublin by 107

States on 30 May 2008 and signed on 3 December of the same year, brought about

a total ban on cluster munitions. It does not permit the use, stockpiling, production or

transfer of cluster munitions under any circumstances. At the time of writing, 104

States had signed and 30 States had ratified the Convention659. It entered into force

on 1 August 2010. The Convention is the result of the ‘Oslo process,’ which got un-

der way in February 2007 with a global conference on cluster munitions660. This result

was achieved within a remarkably short period because of close cooperation

657 See the short profile of the ICBL available on the website of the Geneva Centre for Security Policy:

<http://www.gcsp.ch/e/publications/IGPeaceProject/Guide/details.cfm?lng=enandid=36000>, accessed Au-

gust 2010.

658 Ibid.

659 Regular updates are available at the website of the Cluster Munitions Coalition: <www.stopclustermunition-

s.org/treatystatus>, accessed August 2010.

660 For more information, see: <www.clusterconvention.org>, accessed August 2010.

304

between like-minded States, international organizations and civil society: the Cluster

Munitions Coalition, the ICRC, the UN, and many States were involved.

The Cluster Munitions Coalition, which began the worldwide campaign for a

ban on cluster munitions, is a network made up of more than 200 civil society organ-

izations from more than 80 countries, and with a number of different interests: dis-

armament, peace and security, human rights, assistance for victims, the clearance of

cluster munitions, women’s rights, and so on. It is an international organization

whose aim is to raise awareness of the harm done to civilians by cluster munitions;

and it now works for a better protection of civilians from these weapons by promoting

universal adherence to and full implementation of the Convention on Cluster Muni-

tions. NGOs throughout the world are involved on the national level in the task of

educating governments, the public and the media about cluster munitions: the Coali -

tion supports these efforts661. The Coalition has the main objective to protect civilians

from the effects of cluster munitions. It propelled the emergence of a global norm pro-

hibiting the use, production, stockpiling and transfer of cluster munitions and pro-

motes its universal ratification662. The Coalition also promotes effective implementa-

tion of and full compliance with the Convention by States Parties, encourages States

not yet party to the Convention to take similar steps, and ensures effective monitoring

of all such efforts by civil society663.

661 See e.g. D. Thürer, “Die Humanisierung des Völkerrechts schreitet voran: Von St. Petersburg bis Oslo –

Waffenverbote konkretisieren die Prinzipien der Kriegsführung”, in Neue Zürcher Zeitung, 6 January 2009,

p. 5. For more information, see: <www.stopclustermunitions.org>, accessed August 2010.

662 For instance, Human Rights Watch appeals to Israel to abstain from selling cluster munitions and to sign the

Convention on Cluster Munitions.

663 For more details, go to <www.stopclustermunitions.org>, accessed August 2010.

305

The “Oslo process” illustrates the importance of NGOs in setting standards664.

The NGO in this instance, the Coalition, lobbied intensely: for instance, it passed out

a great deal of information, mainly to delegations from the Third World, where expert -

ise in the area of cluster munitions was scarce. This was one way for the Coalition to

put pressure on governments that intended to weaken the proposed total ban. It also

used other methods: informing the public by organizing meetings and awareness

campaigns and lobbying elected representatives outside the confines of official con-

ferences665. Here again, civil society organizations did not involve themselves with

military logic and strategic thought. They invoked humanitarian values: they said that

these weapons “offend[ed] the public conscience” and “[went] against everything we

stand for as humanitarian and human rights organizations.”666 The Coalition’s efforts

were successful: they were able to persuade governments to adopt a treaty enacting

a total ban on cluster munitions667.

664 D. Pokempner, op. cit., supra note Error: Reference source not found, p. 49.

665 D. Justen, "Der Oslo-Prozess zum Verbot von Streumunitionen. Die Stigmatisierung von ‘Cluster Bombs’

hat begonnen", SWP-Studie, Vol. 30 (2008), pp. 16 et seq.

666 Oslo Conference on Cluster Munitions, Appeal to Governments from the Cluster Munitions Coalition, 21

February 2007.

Available at: <www.regjeringen.no/upload/UD/Vedlegg/Cluster%20Munition%20Coalition.pdf>, accessed

August 2010.; see also, D. Justen, op cit., supra note Error: Reference source not found, pp. 17 et seq.

667 The work of the Coalition also contributed to the French and British governments changing their positions;

see D. Justen, op. cit., supra note Error: Reference source not found, p. 23.

306

V. The media’s role in international humanitarian law 668

"What we know about our society, indeed about the world we live in, we know

through the mass media": this is the opening sentence of Die Realität der

Massenmedien by Niklas Luhmann, the German legal scholar and sociologist669. Luh-

mann's point is especially true when it comes to war: this was confirmed yet again in

Iraq in 2003. Media coverage has become an integral part of conflict, which often

takes place as much at home – the struggle for public opinion – as in the war zone.

The sophisticated communications technology now available has altered the role of

the war reporter and blurred the difference between information and manipulation.

The media have a decisive influence on public opinion: they create interest

and, in some instances, vigilance or a state of alertness. They have been termed a

“public watchdog”670. Their enormous influence can be used for purposes that are be-

nign, but it can just as easily be misused671. The media play an important role in situ-

ations of armed conflict and in humanitarian law.

A. The media: “Public watchdog” and objects of instrumentalization

668 Parts of this chapter have been taken from an article published in German: D. Thürer and T. Kempin,

“Kriegsberichterstattung und humanitäres Völkerrecht” in D. Thürer, Völkerrecht als Fortschritt und Chance

– Grundgedanke Gerechtigkeit – Band 2, Zurich, Dike Verlag, 2009.

669 Author’s translation, N. Luhmann, Die Realität der Massenmedien, Opladen, Westdeutscher Verlag, 1996,

p. 9.

670 By the European Court of Human Rights in several judgments. See, e.g., Markt Intern Verlag and others v.

Germany (Appl. no. 10572/83), ECtHR Judgment, 20 November 1989, para. 35 or Observer and Guardian v.

the United Kingdom (Appl. no. 13585/88), ECtHR Judgment, 26 November 1991, para. 50.

671 See T. Roithner, Gute Medien – Böser Krieg, Vienna, LIT Verlag, 2007.

307

War is now a media event all over the world672. With the advent of the modern

mass media, and particularly since World War I, war reporting has come to play an

important role in forming public opinion – to such an extent that the media have been

accused of complicity in acts of war on several occasions673. Propaganda campaigns

were a feature of both World Wars; networks of propaganda for controlling and mobil -

izing public opinion were built up and technical innovations like radio and television

put into service for the military and subjected to military censorship674. Pictures of war

were produced and publicized with the deliberate intention of winning public support

for war675. The media were involved in this process: both willingly and unwillingly.

The Vietnam War of the mid-1960s is considered to be the first “television

war.” With the emergence of television, it became more difficult to tell two different

stories about one and the same war. Great distances did not prevent information

from travelling quickly. The unrelenting coverage of events in Vietnam is considered

to be one of the main reasons why public opinion in the US shifted and the US gov-

ernment came under increasing pressure to change its policies676. In this instance,

media coverage revealed breaches of international humanitarian law and the suffer-

ing of civilians. And it helped to end the war. But this kind of coverage was possible

672 J. Wilke, "Krieg als Medienereignisse: Zur Geschichte seiner Vermittlung in der Neuzeit", in H.P. Preusser

(ed.), Krieg in den Medien, Amsterdam, Rodopoi, 2005, pp. 83 et seq.

673 Cf. B. Rosenberger, Zeitungen als Kriegstreiber? Die Rolle der Presse im Vorfeld des Ersten Weltkrieges ,

Cologne/Weimar/Vienna, Böhlau-Verlag, 1998.

674 J. Wilke, "Deutsche Auslandspropaganda im Ersten Weltkrieg: Die Zentrale für Auslandsdienst", in J. Wilke

(ed.), Pressepolitik und Propaganda. Historische Studien vom Vormärz bis zum Kalten Krieg,

Cologne/Mainz/Vienna, Böhlau Verlag, 1997, pp. 97 et seq.

675 Cf. H. Barkhausen, Filmpropaganda für Deutschland im Ersten und Zweiten Weltkrieg, Hildesheim/

Zurich/New York, Olmspress, 1982.

676 J. Wilke, op. cit., supra note Error: Reference source not found, pp. 100 et seq.

308

only because journalists were allowed to move about relatively unhindered and were

able to report freely on all aspects of the war. The war in Vietnam has also been

called an “uncensored war.”677 The U.S. Supreme Court in New York Times co. v.

United States678, in striking balance in favour of Freedom of speech, greatly contrib-

uted to this fact.

When the Gulf War erupted in 1991, the U.S. Administration and the military

drew on the lessons of the war in Vietnam. Journalists were prevented by the US

forces from moving freely and reporting was censored. Video material was published

only when authorized by the military679. In some cases, journalists were intentionally

misled, and sometimes information was revealed to the public only because doing so

was thought to be helpful from a strategic point of view. At the same time, the Gulf

War was one of the first wars to be subjected to non-stop coverage on television.

The use of media for military propaganda has a long tradition. Since the

Second World War, and most notably in recent years, the use of media in times of

conflict to influence public opinion has grown in importance and sophistication680. The

attacks on the World Trade Centre in New York in September 2001 were regarded as

677 D.C. Hallin, "The ‛Uncensored’ War", in J.C. Rowe and R. Berg (eds), The Vietnam War and American Cul-

ture, New York, Columbia University Press, 1986; Cf. New York Times v. United States, 403 U.S. 713

(1971), in which the Supreme Court defended the the First Amendment, in this instance as it related to the

freedom of the press, against the US government.

678 New York Times co. v. United States, 403 U.S. 713 (1971).

679 P.M. Taylor, War and The Media: Propaganda and Persuasion in the Gulf War, Manchester/New York,

Manchester University Press, 1992.

680 Cf. A. Mercier, "War and media: Constancy and convulsion", International Review of the Red Cross, Vol.

87, No. 860 (2005), p. 650.

309

an act of war by the US government. Never before had such an event been followed

“live” on television all over the world.

In the 2003 Iraq war, a new strategy for controlling journalists emerged, in the

form of “embedded journalism”681. About a hundred journalists were selected by the

United States Department of Defense, prepared for the war in special courses and

“embedded” with troops on the front: they lived with the troops, moved around in the

conflict area with the troops in military vehicles, etc. It was claimed that these mem-

bers of the media were independent, but in fact they moved with the armed forces

and reported directly from places where hostilities took place682. In this sort of journal-

ism, inevitably, it was not the journalists who decided what to report.

Private videos brought to light atrocities commited at Abu Graib. Also, a dec-

ade after massacre, private videos influenced both public opinion about the Srebren-

ica affair and the actual judgement of the International Criminal Tribunal for the

former Yugoslavia. The Hirondelle foundation has been working to ensure that in the

areas of Africa affected by the “forgotten conflicts” there are radio stations that inform

and influence listeners by means of humanitarian “messages”. Thus, although the

media frequently fail to provide the accurate reporting needed by the public, some

members of the media are putting forward solutions to the problem..

B. Responsibilities of the media

681 Cf. A. Mercier, op. cit., supra note Error: Reference source not found, p. 657.

682 Cf. Too Close for Comfort? The Role of Embedded Reporting during the 2003 Iraq War, Summary Report,

prepared by a team of researchers from the Cardiff School of Journalism for the BBC, November 2003.

310

Obviously, the media can use their influence for better or for worse. They have

done so during wars – at their onset and up to the end - with positive and with ad-

verse consequences. On the one hand, they can be instrumentalized by govern-

ments and the military, take sides of their own accord, stir up hatred, incite one ethnic

group to attack another, fan fear or dehumanize the enemy. For example, during the

1992 war in Bosnia and Herzegovina, the media was harshly criticized for “[putting]

out false and inflammatory information and [stirring] up the climate of hatred and mu-

tual prejudice that fuels the conflict.”683 Radio Télévision Libre des Mille Collines

(RTLM) played a part in the Rwandan genocide of 1994. It incited people to commit

genocide and crimes against humanity. In The Prosecutor v. Ferdinand Nahimana,

Jean-Bosco Barayagwiza and Hassan Ngeze, the International Criminal Tribunal for

Rwanda declared that:

“… [RTLM’s broadcasts were] a drumbeat, calling on listeners to take action against

the enemy and enemy accomplices, equated with the Tutsi population. The phrase

‘heating up heads’ captures the process of incitement systematically engaged in by

RTLM, which after 6 April 1994 was also known as ‘Radio Machete.’ The nature of ra-

dio transmission made RTLM particularly dangerous and harmful, as did the breadth of

its reach. Unlike print media, radio is immediately present and active. The power of the

human voice, heard by the Chamber when the broadcast tapes were played in Kinyar-

wanda, adds a quality and dimension beyond language to the message conveyed. Ra-

dio heightened the sense of fear, the sense of danger and the sense of urgency giving

rise to the need for action by listeners. The denigration of Tutsi ethnicity was augmen-

ted by the visceral scorn coming out of the airwaves - the ridiculing laugh and the nasty

sneer. These elements greatly amplified the impact of RTLM broadcasts.“684

683 T. Mazowiecki, Special Rapporteur of the Commission of Human Rights, Report E/CN.4/1995/54.

684 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, International Crim-

inal Tribunal for Rwanda, Trial Chamber I, Judgment of 3 December 2003, Case No. ICTR-99-52-T. The ex-

cerpt is taken from the summary; see para. 99.

311

All three of the accused were found guilty of genocide, conspiracy to commit geno-

cide, direct and public incitement to commit genocide and crimes against humanity.

However, the media also often use their influence in more benign ways; they

often meet their responsibilities. The media have, during the course of a number of

conflicts, reminded States of their duty to comply with humanitarian law and re-

peatedly called attention to breaches of international humanitarian law by various

parties. The primary role of the media is to investigate facts. And that may lead them

to uncover violations of human rights and humanitarian law, and promote compliance

with international humanitarian law. Like other actors in this area, the media can –

and often do – indirectly contribute to the development and implementation of hu-

manitarian law, e.g. the protection of civilians685 and the prosecution of war criminals.

It has been argued that “the strongest possible case for respect for the Third Geneva

Convention [on the treatment of prisoners of war] was in fact made when the infam-

ous pictures of starved prisoners of war hit the front pages worldwide.”686 Thus,

“journalists can be partners in humanitarian endeavour by reporting appropriately on

acts of war, i.e. by holding parties to conflict responsible under specific articles of the

Geneva Conventions.”687 Furthermore, the media can contribute to public opinion by

serving as a force for peace. Since public opinion has a decisive influence on de-

cisions about war and peace – remember the war in Vietnam – careful and purpose-

ful media reporting can, indirectly, do so as well688.

685 R. Huguenin-Benjamin, "Can Public Communication Protect Victims?", International Review of the Red

Cross, Vol. 87, No. 860 (2005), pp. 661 et seq., p. 668.

686 R. Huguenin-Benjamin, op. cit., supra note Error: Reference source not found, p. 668.

687 R. Huguenin-Benjamin, op. cit., supra note Error: Reference source not found, p. 670.

688 E. Woit, “Vor dem Krieg der Waffen wird der Krieg um die öffentliche Meinung geführt”, Speech at the

Rosa Luxemburg Conference, 16-17 April 2004, Dresden, available at: <http://www.uni-kassel.de/fb5/

312

Broadcasting images of prisoners of war The images of US prisoners of war in Iraq and of hooded Iraqi prisoners behind bars

that were circulated throughout the world were met with all the outrage, indignation and

anger that could have been expected. On several occasions, in the territory of States

involved in the war, the media showed images of prisoners of war, sometimes in humili-

ating situations and apparently being intimidated. Those images were also taken up

and broadcast by the television networks of other countries not involved in the war, un-

leashing a public debate around whether broadcasting of such images was lawful or

whether it constituted a breach of international humanitarian law. According to Article

13 of the Third Geneva Convention, prisoners of war "must at all times be protected,

particularly against acts of violence or intimidation and against insults and public cu-

riosity". It follows from this article that the broadcasting of such images is not lawful if

the prisoners' faces are recognizable. It should be pointed out that showing images of

prisoners of war is not explicitly forbidden under Article 13. However, the generally ac-

cepted interpretation is that it is prohibited to show images of identifiable prisoners of

war.689

The question also arises as to whether it is a breach of international humanitarian law

for television networks in other countries to pick up such prohibited images, and

whether non-belligerent States are obliged to refrain from broadcasting them on their

national networks. In practical terms, rebroadcasting unlawful images is also a breach

of Article 13 of the Third Geneva Convention since, under Article 129 of the Third

Geneva Convention, all the States party to that Convention are obliged to take mea-

sures to uphold the Convention and to "suppress all acts contrary to its provisions".690

As the Article is addressed to all the States party to the Convention and not only to bel-

ligerents, it follows that neutral countries too have to take such measures. Govern-

ments can therefore at least be expected to give appropriate instructions to their public

broadcasters and their supervisory bodies. If the initial broadcasting is prohibited, there

appears to be a justification for prohibiting rebroadcasting of the material and for requir-

frieden/themen/Medien/woit.html>, accessed August 2010.

689 On the treatment of prisoners of war, see A. Rosas, The Legal Status of Prisoners of War: A Study in Inter-

national Humanitarian Law Applicable in Armed Conflicts, Helsinki, Suomalainen Tiedeakatemia, 1976,

Chapter 4.

690 Art. 129 of the Third Geneva Convention: “Each High Contracting party shall take measures necessary for

the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches

defined in the following Article.”

313

ing the States concerned to take measures to prevent it. In connection with the war in

Iraq, there were only very few instances where such measures were taken for the sake

of compliance with international humanitarian law. By way of example, the French na-

tional regulatory authority for radio and television, the, decided that the faces of prison-

ers of war had to be electronically blurred when they were broadcast or alternatively

that they should only be shown from behind.691

However, unblurred images of prisoners of war and of the dead are sometimes used

deliberately as instruments of psychological warfare and war propaganda to demoralize

the enemy. It is therefore pertinent to ask what legal status should be given to facilities

that broadcast of such images in wartime.

These examples demonstrate the importance of the media’s role in encour-

aging compliance with humanitarian law. As Niklas Luhmann has said, we must be

aware of the fact that what we know about war, we know through the media. Keeping

that in mind, it is certainly appropriate to ask, “whether journalists have a responsibil-

ity to report on armed conflicts in terms of what constitutes a violation of international

humanitarian law.”692 Several attempts have been made to regulate the nature of re-

porting; and some people have called, less ambitiously, for responsible and careful

reporting. Several organizations have suggested that ethical considerations should

figure more prominently in the relationship between politics and the media. They pro-

pose a change of paradigm: from war journalism to a journalism of peace. Put an-

other way, what they are saying is that peace should be the vital aim of all journalistic

involvement with conflicts. This should not happen in such a way as to cause the me-

dia to lose their objectivity and neutrality, but in a way that militates against the instru-

mentalization of the media, calls upon and enforces the qualities of neutral and ob-

691 See the recommendation and press release issued by the Conseil Supérieur de l'Audio-visuel on 18 and 24

March 2003 respectively. Available at <http://www.csa.fr/infos/textes/textes_detail.php?id=11876> and

<http://www.csa.fr/actualite/communiques/communiques_detail.php?id=11913>, accessed August 2010.

692 R. Huguenin-Benjamin, op. cit., supra note Error: Reference source not found, p. 668.

314

jective reporting to maintain peace, and promotes respect for the principles of hu-

manitarian law. (Unclear. How can a “way” do all this?) There seems to be wide-

spread agreement that war is too important a matter to be left completely to the milit-

ary and that, especially in war, journalists have a central role to play in providing in -

formation, offering an alternative view, raising public awareness and, ideally, in edu-

cating their audience. Their work is of value only if it is regarded not as a trade, a

business and a vehicle for senseless sensationalism, but as having a higher purpose,

underpinned by professional ethics, with an educational role and firmly rooted in law.

Looking back to the First World War, Walter Lippmann, a well-known publicist

of the time, observed that nobody actually saw the war: neither men in the trenches

nor the commanding general; and that, what the correspondents saw, occasionally,

was the terrain over which the battle had been fought and that they was being repor -

ted day by day was what they were told at press head quarter. 693 Things have

changed since. Mass media are omnipresent and have an enormous responsibility.

They are responsible for informing the public and this will always prompt attempts by

the media to manipulate information or by some to manipulate the media. Wide-ran-

ging and competitive reporting sharpens people's awareness of issues related to hu-

man rights and to humanitarian law. Journalists are a force for public accountability. It

is in the public's interest to have reliable information. The journalist's job is to provide

it.

C. Protection under International Law

693 W. Lippmann, Liberty and the News, New Brunswick and London, Transaction, 1995 (first published 1920), p. 41.

315

In order to be able to responsibly fulfil their proper functions, journalist need –

in peace as well as in war – to be granted a space of liberty in which to operate pro-

fesionally; in war they need a special protection; and media infrastructers must be

protected from the effects of war.

1. A space of liberty

Such liberty is, first of all, garanteed in human rights law. Article 19 para 2 of UN-

Covenant of Civil and Political Rights provides that everyone “shall have the right to

freedom of expression”. Similar garantees are provided for in State Constitutions.

They are, as a general rule, also applicable in times of armed conflict. However, free-

dom of expression may – as is expressly stated in Article 20 of the Covenant, may

not be used for purposes of propaganda for war and it is further stated in this Article

that any “advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law but special limitations

on the freedom of expression are permitted, and the process of weighting liberty of

communication and public interest has proved to be delicate in judicial practice. The

European Court of Human rights has on several occasions ruled that freedom of the

press must be accompanied by duties and responsibilities. It is not always a simple

matter, however – as demonstrated by the Jersild case, in which a journalist inter-

viewed racists and broadcast their views – to know where to draw the line between

press freedom and criminal responsibility.694

A similar reasoning is to be found in domestic jurisprudence when interpret-

ing corresponding provisions in domestic law. The New York Times decision of the

694 Case of Jersild v. Denmark (Application no. 15890/89), Judgment of 23 September 1994.

316

U.S. Supreme Court is a case in point . Freedom of speech gave greater priority over

wishes the powers of the U.S. President.

Excursus: The Randal affair

The tightrope walked by war correspondents, between responsibility and freedom of

opinion and of expression, is illustrated especially well by the Randal affair. Jonathan

Randal worked for several years for the Washington Post. In an article he wrote in

1993, he quoted the former Bosnian-Serb housing minister Radoslav Brdjanin as fol-

lows: "Those unwilling to defend [Bosnian-Serb territory] must be moved out to create

an ethnically clean space." In January 2002, Randal was subpoenaed to testify before

the International Criminal Tribunal for the former Yugoslavia in the case against Brd-

janin, who was charged with persecution and expulsion. The Tribunal affirmed that

Randal's testimony would be useful for the case. Randal refused to appear before the

Tribunal. In June 2002, The Trial Chamber confirmed the subpoena. Randal ap-

pealed. He explained to the Appeals Chamber that court testimony from members of

the press corps could result in damaging the press’s ability to report from war zones.

The Tribunal, he stated, had made two errors. The first was its failure to recognize

that as a journalist he should enjoy a special status that freed him from the obligation

to give evidence. The second error, he said, was that he had been subpoenaed by

mistake. Regarding the first error, Randal said that covering wars without the special

status he referred to would imperil both the journalist and his sources, and that if

journalists were forced to testify, it could result in their being barred from access to

important information. Regarding the second error, he stated that while he was in-

deed the author of the article, it was another journalist who had conducted the inter-

view with Brdjanin. In support of Randal, 34 media organizations sent an open letter

demanding that journalists be called as witnesses only if their testimony was abso-

lutely essential for the case and if the information required was not available from

other sources695.

There was the danger that this would cause an unwelcome shift in focus:

journalists, instead of reporting on human rights violations, would themselves

become victims. And that would have serious consequences. The court also

recognized that while the work of war correspondents was in the public in-

695 See the press release of 11 December 2002 from the International Criminal Tribunal for the former

Yugolsavia: <http://www.un.org/icty/pressreal/p715-e.htm>, accessed August 2010.

317

terest, that interest conflicted with the public interest in legal proceedings that

should be able to draw on the widest possible range of resources. Journalists

should testify only when their testimony was central to the proceedings. The

Appeals Chamber therefore upheld Randal's appeal, overturned the Trial

Chamber's decision and set aside the subpoena696.

In this case, Randal based his arguments on the key human right to a free

press. The Tribunal's decision sent a signal and will be of consequence in the

future. It is generally accepted that a free press has a key role in liberal demo-

cracy and the rule of law, for it is precisely in wartime that that freedom is cur-

tailed.

2. Special protection of journalists under international humanitarian law

Exposed as they are to the physical threats of armed conflict, war corres-

pondents take grave risks day-in day-out. They can die in a hail of bullets or be blown

up by a bomb. In addition, they frequently fall victim to arbitrary violence and threats

of violence from political authorities or armed forces that take a dim view of their

activity. The number of attacks against representatives of the media has risen dra-

matically.697 How can journalists in general and war reporters in particular be protec-

ted? International humanitarian law contains several provisions designed to protect

journalists and ensure that they are able to carry out their work. The following will il-

696 The International Criminal Tribunal for the former Yugoslavia, Judgment of 11 December 2002 (IT-99-36-

AR73.9).

697 See the 2006 annual report of Reporters Without Borders and the information on its webside <http://

www.rsf.org>, accessed August 2010: in 2006, 81 journalists were killed in various parts of the world, 84

had been killed by November 2007, making 2007 the deadliest year since 1994, during which 103 journalists

died. By late November 2007, 132 journalists had been imprisoned while about 870 had been arrested and

held for a time. Physical assaults had doubled since 2001. In all in 2007, over 1,400 in a number of countries

were beaten, threatened with death, abducted or harassed, frequently during election campaigns.

318

lustrate the position of war reporting under international law and the specific prob-

lems that arise.

Accounts of journalists being wounded and taken prisoner prompts one to

ask what the law has to say about them. Both the 1899 and 1907 Hague Conven-

tions on rights and duties in wartime698 and the 1929 Geneva Conventions on the

treatment of prisoners of war refer to “correspondents”.699 The law applicable today

regarding the treatment of war correspondents is laid down in the 1949 Geneva Con-

ventions and the Additional Protocols of 1977.700 The term “journalist” covers all me-

dia personnel, that is, everyone responsible for collecting, processing and dissemin-

ating information, including photographers, cameramen and support staff.701

There were basically three categories of journalist covering the invasion of

Iraq: 1) “embedded” journalists who were integrated directly into the armed forces; 2)

journalists working in Baghdad, whose presence was officially approved – but also

monitored – by the Iraqi information ministry; 3) free and independent journalists.

These three categories will now be examined more closely.

698 Article 13 of the 1907 Hague Convention respecting the laws and customs of war on land stipulates that

“individuals who follow an army without directly belonging to it, such as newspaper correspondents and

reporters, sutlers and contractors, who fall into the enemy’s hand and whom the latter thinks expedient to

detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the

military authorities of the army which they were accompanying.”

699 The text quoted in footnote 581 was included in the 1929 Geneva Convention on prisoners of war (Art. 81).

700 A. Wilke presents a clear summary of the codification process regarding war correspondents in “Der völker-

und gemeinschafsrechtliche Schutz der Tätigkeit des Auslandkorrespondenten”, Berlin, 1994.

701 Recommendation No. R (96) 4, of the Council of Europe, Committee of Ministers to Member States on the

Protection of Journalists in Situations of Conflict and Tension of 3 May 1996, p. 27.

319

1) Generally speaking, persons who follow armed forces without belonging to them

enjoy civilian status. They must have an identity card issued by the armed forces

which confirms their status. If captured, they have prisoner-of-war status. Thus the

Geneva Conventions place war correspondents in a singular position, a grey area

somewhere between combatant and non-combatant. In practice this means that if the

unit into which they are incorporated is attacked, they may not be attacked provided

that they do not take part in the fighting. Under Article 50 of Additional Protocol I, if

they take part in the hostilities they lose their protection (granted to civilians under

Article 51[3]) for the period during which they take part. The importance of this fact

should not be downplayed since a journalist can be prosecuted for passing on to the

armed forces the information he or she gathers. A war correspondent who engages

in espinonage loses his right to prisoner-of-war status in the event of capture. The

fact that a journalist wears a military uniform in no way affects his status. But it does

make it difficult for enemy forces to distinguish between the non-combatant journalist

and the combatants. In the event of doubt, the individual must be treated as a civil-

ian.

2) The second category includes the journalists working in Baghdad with the permis-

sion of the Iraqi authorities at the time of the invasion. Almost all were staying in the

Palestine Hotel and were subjected to round-the-clock surveillance by the Iraqi gov-

ernment, until its collapse. The surveillance included visits guided by the police to

hospitals and severely bombed neighbourhoods to show the journalists how badly Ir-

aqi civilians were suffering. Iraq was trying to use foreign media outlets for its own

propaganda purposes. Journalists in this category are covered by Article 79 of Addi-

tional Protocol I. They have civilian status under the Protocol, provided they do noth-

ing to jeopardize that status. To document his status as a journalist, each must carry

320

identity papers issued by the government of the country of which he is a national, of

which he is a resident or in which he is working.

3) The third category are freelance journalists working somewhere in the war zone.

They face the greatest risks since they are inadequately protected by international

law. Freelancers who are captured are protected in some cases by the Fourth

Geneva Convention, particularly when the journalist concerned is a national of one of

the warring parties (for example an American captured by Saddam Hussein’s forces).

Journalists who are citizens of a neutral State are not protected by the Fourth Con-

vention if their government has diplomatic representation in the State in whose power

they find themselves.

Recent decades have seen a debate about how journalists on dangerous

missions can be better protected. When Article 79 of Additional Protocol I was being

prepared, it was suggested that journalists display an emblem recognizable from far

off. This was refused on the grounds that such an emblem would make reporting

even more risky because it would draw the enemy’s attention to the fact that a journ-

alist was present, which in some cases could endanger the surrounding area, and

with it the civilian population. Another proposal was to create a special status for

journalists. The Geneva Conventions and their Additional Protocols assign special

status to certain categories of person, including medical personnel, clerics and ICRC

delegates. More could have been added, but there was the risk that additions could

weaken the protection for those already enjoying it. It would therefore appear wise, in

political and practical terms, to avoid assigning journalists any special status since

this might endanger individuals who act directly to help people affected by the fight-

ing. In addition, any special status requires strict monitoring to reveal misuse. The

discussion about protecting journalists by means of an instrument of international law

321

has nevertheless achieved one thing – it has made journalists more familiar whith in-

ternational law and prompted them to take a greater interest in the subject. Interna-

tional humanitarian law can only benefit from this.

3. Attacking media facilities

On 26 March 2003, the US and British air forces bombed the Iraqi television

building in Baghdad, two days after Iraqi television had broadcast images of intimid-

ated US prisoners. The network remained off the air for several hours before broad-

casting was able to start up again. The justification given for the attack was that the

Iraqi state television channel – which was controlled by Saddam Hussein – was an

important instrument of Iraqi war propaganda and therefore constituted a legitimate

target.

The attack on the Iraqi television building is reminiscent of NATO’s attack on

the Serbian television station and its transmitting tower in April 1999. NATO too de-

fended its attack on the grounds that the tower contained facilities that were import-

ant for the war effort and that those facilities had been used, among other things, for

Serbian war propaganda. The attack not only caused considerable material damage;

at least 10 and perhaps as many as 17 people died, and a number of civilians were

wounded. The bombing elicited major protests from the international press, and the

question of the attack’s legitimacy in international law was raised. To answer that

question, we need to decide whether the television tower is a military objective or a

civilian object.

It is impossible to say a priori whether a television tower is a legitimate milit-

ary objective, as this depends not on the nature of the building but on the use actu-

ally made of it. The broadcasting facilities may have served civilian purposes or milit-

322

ary ones such as transmission of commands and war propaganda. NATO tried to

draw up a list of all “legitimate targets”. This is impossible, because the decision

whether something is or is not a legitimate target can only be based on the immedi-

ate circumstances (except in the case of a purely military facility). A list of this kind

weas nevertheless suggested and was to include “oil and other power installatioins,

communications installations, including broadcasting and television stations and tele-

phone and telegraph stations used for military communications”. It must however be

emphasized that the inclusion of an object, for example a railway line or a main line

of communication, in a list of this kind does not mean that it is a military objective and

therefore a “legitimate” target in reality. According to Article 52 of Protocol I additional

to the Geneva Conventions, the following are military objectives: “objects which by

their nature, location, purpose or use make an effective contribution to military action

and whose total or partial destruction, capture or neutralization, in the circumstances

ruling at the time, offers a definite military advantage.”

Furthermore, civilians and civilian objects may only be attacked subject to ap-

plication of the proportionality principle. According to Article 57(2) of Protocol I, “an

attack shall be cancelled or suspended if it becomes apparent that the objective is

not a military one or subject to special protection or that the attack may be expected

to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or

a combination thereof, (…) which would be excessive in relation to the concrete and

direct military advantage anticipated”. The attacker is also bound to “do everything

feasible to verify that the objectives to be attacked are neither civilians nor civilian ob-

jects (…) but are military objectives”. These rules have customary status. Whether or

not NATO obeyend them is still disputed. Owing to the lack of information available to

it, the International Tribunal for the former Yugoslavia decided not to pursue the

case. It was virtually unthinkable that NATO’s attack on the television tower in Bel-

323

grade could be found to be unlawful. It would therefore seem to indicate that televi-

sion towers per se should be categorized as civilian objects. It was the circumstances

that determined whether or not it was legitimate to bomb the tower in Baghdad. At

the present time, the question has not been definitvely answered.

Alongside questions relating to the law of war, human-rights issues may also

arise in connection with such borderline cases. One illustration is a complaint filed by

several Yugoslaw citizens against NATO before the European Court of Human

Rights. Several of their relatives had been killed in the NATO attack on the Serbian

television station. The plaintiffs claimed that several core human rights had been viol-

ated by the bombing, namely the right to life (Article 2 of the European Convention on

Human Rights, or ECHR), the right to freedom of expression (Article 10 of the ECHR)

and the right to an effective remedy (Article 13 of the ECHR). The Court declared the

complaint inadmissible on the grounds that Yugoslavia did not fall within the territorial

applicability of the ECHR as set out in Article 56 and that the European Court of Hu-

man Rights therefore did not have jurisdiction to hear the case.

Although the case was ultimately not heard on the merits, it demonstrates the

important and fundamental nature of human rights and the role they can play in

cases concerning the media, information and war reporting.

***

At first glance, it is hard to grasp why reporting on war enjoys so much

prestige in the media, as it concerns itself mainly with military achievements and

political situations702 and is comparatively indifferent to the suffering of civilians. Re-

702 See also M. Koskenniemi, "'The lady doth protest too much’: Kosovo and the turn to ethics in international

law", The Modern Law Review, Vol. 65, No. 2 (2002), pp. 172 et seq.

324

portage from the victims’ perspective – i.e. from a humanitarian angle – is sorely

lacking today. And yet, even small doses of reportage on themes of humanitarian

concern – which lie at the heart of international law – can have a great impact. It is in-

dividuals or groups of individuals who shape the law and, through their ideas, see to

it that humanitarian law is effective. Those who report on war, and the media in gen-

eral, serve as vehicles for the ideas of those who themselves shape humanitarian

law. As a well-known legal scholar, Philip Allott, has said, “The world revolution is a

revolution not in the streets but in our minds.”703

Violence attracts the media, and war more so than any other type of violence.

Cameras capture war and its effects: tank columns, firefights, crowded hospitals,

plundered museums, gaping holes in television stations, wrecked houses and

schools, press briefings from senior officers and streams of refugees. Journalists set

out not only to portray the events of war but also to analyse them and to bring to light

strategic plans and command sequences. The essence of the journalistic ethos is to

report in a truthful, comprehensive and balanced manner. Yet the ancient Greek

playwright Aeschylus noted two and a half millennia ago that truth is the first victim of

war.

Truth is often the victim of war. “Live” reports are frequently too bound up with

the event itself to be adequately thought out – they end up being impressionstic,

emotion-ridden spectacle. In many cases an objective view must await future works

of critical scholarship and even literature to put the events in their proper perspective,

provide background and explain complex processes. One thinks of the ancient Greek

Thukydides, the first critical war historian, and of Theodor Fontane, who wrote “war

books” in the form of historical fiction. Dealing with the fraught matter of fact versus

703 P. Allott, The Health of Nations: Society and Law beyond the States, Cambridge, Cambridge University

Press, 2002, p. 421.

325

fiction, Ernest Hemingway – himself a gifted journalist who reportet on the Spanish

Civil War – remarked that all good bookd were alike in that “they are truer than if they

had really happened”. The finest purely literary portrayal of the tragedy of war is

probably still Homer’s account of the Trojan War. But here too the reader is practic-

ally shielded from the pitiless reality by the artistic power of language.

VI. Concluding remarks

What conclusions can be drawn from all that has been said in this chapter?

During the period immediately after the Second World War, the contribution to inter-

national humanitarian law made by the United Nations, the International Court of

Justice, regional organizations and the Non-governmental Organisation was marginal

at best. For various reasons, promotion and monitoring of compliance was left mainly

to the International Committee of the Red Cross. This institution was for very laong

the only actor of consequence in the field of humanitarian law and humanitarian ac-

tion. Some of the NGOs now active in the area of humanitarian law were not in exist -

ence then. The United Nations was concerned primarily with peace. Its ideals did not

include the regulation of war. But things have changed. To be sure, the ICRC re-

mains the unique symbol and a most powerful, effective driving force in humanitarian

law and politics. But there is a growing desire among many organizations, regional

and international, for involvement with humanitarian law, to study and to contribute to

it. A worldwide network has emerged that contributes to the development and promo-

tion of humanitarian law. The individual contributions of particular institutions may

seem rather vague and fragmented in nature. If we look only at the work of the Hu-

man Rights Council or the European Union, we may wonder whether the work of any

326

single institution can substantially alter international humanitarian law. However, in a

globalized world, this does not seem to be the right approach. If we were to take a

more detached view, we would see that it is exactly the sum of all the insubstantial-

seeming little pieces of work that create the whole picture. The activities of the Inter-

national Committee of the Red Cross, the various bodies of the UN, the action taken

and the missions deployed by the Security Council, the establishment of precedent-

setting ad hoc tribunals and the permanent International Criminal Court, the case law

of international and regional courts, the contributions of regional organizations, the

work of NGOs, global reportage on and promotion of humanitarian law through the

mass media: it is all these efforts that have cumulatively made respect for interna-

tional humanitarian law a matter of public concern all over the world.

We observe, in sum, that a deep shift in international relations has taken place

and that a new conceptional thinking is required. Anne-Marie Slaughter rightly ob-

served that a global world of networks is emerging and she concluded, to good reas-

ons, that this network should be guided by “general ‘constitutional’ norms”. She

claims that some “sort of constitutional principles” (i.e. global deliberative equality, le-

gitimate differences, checks and balances, subsidiarity must operate at a metalevel

across all types of government networks across all types of government networks,

specifying basic ground rules for how the members of these networks treat each

other and what the basic division of labor is between them.704 705This is the view un-

derlaying the philosophy of this book, too, and how it is expressly referred to at sev-

eral places. And I would like to stress in concluding, that networks are certainly ne-

704 Slaughter, op. cit., supra note Error: Reference source not found. See also A. Fischer-Lescano,

Globalverfassung - Die Geltungsgründe der Menschenrechte, Weilerswist, Velbrück Wissenschaft, 2005, p.

13 et seq.

705 P. de Senarclens, L’humanitaire en catastrophe, Paris, Presses de Sciences Po, 1999.

327

cessary for a smooth functioning of a “New World Order”, but – as the case of the In-

ternational Committee of the Red Cross demonstrates: institutional independence,

liberty of judgement and of action of an organisation might in some respect, and in

many situation serve victims and potential victims better than to be integrated in a

bureaucratic superstructure. The constitutional principle that Anne-Marie Slaughter

refers to includes cooperation values of pluralism. Pluralism means the capacity of

actors to fulfil their specific mandate and by doing this to contribute valuably to in an

optimal way. This means for the International Committee of the Red Cross to have

access to and to protect those suffering, be it by proceeding in a confidential way or

by speaking out if serious and repeated violations of international humanitarian law

are at stake, if the ICRC has itself confirmed these violations or if they are notorious,

if discreation of bilateral members did not allow to change the situation and if a public

appeal is in the interest of the victims.706 ASS überprüfen

706 J. Kellenberger, “Speaking Out or Remaining Silent in Humanitarian Work”, International Review of the

Red Cross, Vol. 86 (2004), pp. 593 et. seq.; M. Lorenzi, op. cit., supra note Error: Reference source not

found, p. 23.

328

CHAPTER SEVEN

A SYSTEM OF SYSTEMS

“So-called professionalism is not enough. Some-

thing more is necessary. For the sake of simplicity, it

might be called spirit. Or feeling. Or conscience.”

- Vaclav Havel707

The reader may recall Sir Hersch Lauterpacht’s famous observation that inter-

national law was on the fringe of the law, and that humanitarian law was on the fringe

of international law. It set us off on a journey to find out whether the statement is still

valid.

We began by trying to draw a portrait of international humanitarian law in all its

distinctiveness. We explored its rules of constraint and its human potential, and we

went on to ponder the question of religion. We found that the ideals of humanity that

underlay the major religions in a variety of forms were also inherent in humanitarian

law. This led us to some general conclusions regarding the basic values on which hu-

manitarian law rests. Then we discussed the changing character of war in an age of

globalization and reflected on the implications for humanitarian law. We also dis-

cussed the emerging global network of actors in the area of humanitarian law. In this

concluding chapter, I shall try to sketch a “system of systems of rules”: I shall try to

situate international humanitarian law within an overarching structure or system of in-

ternational law. I shall then consider how these systems affect one another.

707 V. Havel, “Politics, morality, and civility”, in D.E. Eberly (ed.), The Essential Civil Society Reader, Lan-

ham, Rowman, 2000, p. 402.

329

“Even wars have limits”: this was the motto chosen by the International Com-

mittee of the Red Cross for the celebration of the 50th anniversary of the four

Geneva Conventions. In those fifty years, the system of humanitarian law has grown

more complex and coherent. But Lauterpacht’s observation still rings true to many

legal experts. They continue to regard humanitarian law as being on the margins of

the law, lacking much of the clarity and efficacy that distinguish legal rules from rules

of other kinds.

Having brought up the subject of changes in the law, what shall we say about

war? Has not warfare also changed fundamentally in the shadow of the law? We will

have to ask another question as well: What are the fundamental challenges in the

situation in which we find ourselves, and how can we adequately analyse them?

Since war – the province of humanitarian law – has changed so much, how can we

be confident that rules established in the nineteenth and twentieth centuries will con-

tinue to be effective or pertinent in the twenty-first? Does the law still build thick walls

protecting people from violence? What are these walls? Are they still effective or

have they been breached? Do they need repairs? Can they be repaired? Is a new

design needed?708 I shall conclude this essay by drawing the attention of the readers

to the potential threats posed by advances in technology and the challenges they

present for the idea and the capacities of the regulatory process.

We shall deal with the following topics in this chapter: warfare in the shadow of

the law, the state of humanitarian law, and the strength of the “walls of the law.” We

708 Cf. Y. Sandoz, „International Humanitarian Law in the Twenty-First Century“, Yearbook of International

Humanitarian Law, Vol. 6, 2003, pp. 3 et seq.

330

shall also discuss the political and moral imperatives in an age of technological ad-

vances whose destructive potential is alarming. Considering the vastness of the sub-

ject, nobody will certainly expect all these questions to be answered here and now.

But it seems to me that it is often more important, in academic life as elsewhere, to

ask the right, albeit open-ended, questions than to give – prematurely – definitive an-

swers.

I. Warfare in the shadow of the law

The law concerns itself ever more closely with war. But does this necessarily

mean that we are about to enter a 'brave new world' in which the imperatives of inter-

national law will succeed in taming the “dogs of war”?709 Is it wilful naiveté to believe

that the law will create a better world? Are we deluding ourselves by ignoring a dark

and hopeless reality?

Let me try to answer that question by leaving the realm of law. Sigmund Freud

suggested that there was a never-ending struggle between two basic drives in all hu-

man beings: the drive to destroy, thanatos, and the drive to preserve and reproduce

life, eros. Are we still ruled by this dichotomy, or might it be that the cultural pro-

cesses of the recent past have caused some sort of psychological metamorphosis on

a vast scale? Have we changed so much that the very idea of war now evokes such

outrage as to make war itself wholly unacceptable? Do we feel a basic emotional re-

709 See William Shakespeare, Julius Caesar, Act III, Scene 1: “Cry havoc and let slip the dogs of war.”

331

fusal – a constitutional pathological intolerance – of war?710 Or is the appetite for bru-

tality and destruction an immutable aspect of human nature?711

What is obvious – and different from earlier periods in history – is the modern

trend in international politics to arrange the aims of war in well-defined categories,

and to express those aims in legal terms. The military campaign in Afghanistan was

considered to be legal because it was based on the right to self-defence laid down in

the UN Charter. The 2003 war against Iraq, on the other hand, appeared to be in viol -

ation of international law since it lacked the approval of the Security Council. And

ever more frequently, acts of war are judged by the standards of humanitarian law:

by NGOs, international organizations and States. Public opinion adapts to and re-

peats criticisms made in those terms. For example, on 27 February 2007 charges

were brought before the International Criminal Court (ICC) against a member of the

Sudanese government and a militia commander for war crimes and crimes against

humanity712. It was given wide coverage by the media. This was also the case when

the Prosecutor of the ICC took steps to have the President of Sudan indicted by the

Court713 and when Radovan Karadzic was extradited to the International Criminal

Tribunal for the former Yugoslavia714.

710 A. Einstein, “The Einstein-Freud Correspondence (1931-1932),” in O. Nathan and H. Norden (eds), Einstein

on Peace, New York, Simon and Schuster, 1960, pp. 186 et seq.

711 See J. Glover, Humanity: A Moral History of the Twentieth Century, London, Cape, 1999.

712 ICC, The Prosecutor v. Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rah-

man ("Ali Kushayb"), Case No. ICC-02/05-01/07.

713 ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09.

714 ICTY, The Prosecutor v. Radovan Karadžić, Indictment, 19 October 2009, IT-95-5/18-PT; cf. “Radovan

Karadžić in Tribunal’s Custody”, ICTY Press Release, The Hague, 30 July 2008.

332

As the importance attached to humanitarian law grows, so, too, does the

awareness that education in this body of law is essential in the political, administrat-

ive and even the economic spheres. This certainly applies to decision-makers in gov-

ernment or in international organizations. Above all, it is now required of all those in-

volved in armed conflict that they have knowledge of what is allowed and what is not.

A soldier must know what he may, and may not, do when no superior is there to give

him orders. And he cannot hide behind the orders of a superior if those orders violate

international humanitarian law.

However, one does not have to look very hard to find evidence of the sad state

of the international community's peace-promoting and humanitarian endeavours. It is

true that there are more peace-keeping operations than ever before. On the whole,

however, what is striking is the frequency with which the international community

ducks its responsibility for maintaining peace and takes refuge in humanitarian oper-

ations (thereby making actual humanitarian work more difficult). Most disturbing of all

is the international community’s foot-dragging in performing the task of ensuring in-

ternational security715. The international community did not manage to save the Bos-

nian Muslim men in Srebrenica from being massacred716, or to bring order to

Somalia, or to preserve civilians in Darfur from being killed, tortured, raped, driven

from their homes or having their property destroyed717. Of course, these failures are

715 See D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism, Princeton/Oxford,

Princeton University Press, 2004, pp. XXV et seq.

716 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports

2007.

717 M. Bothe, “International legal aspects of the Darfur conflict,” in A. Reinisch and U. Kriebaum (eds), The

Law of International Relations: Liber Amicorum Hanspeter Neuhold, Utrecht, Eleven International Publish-

333

not mainly the fault of organizations – the United Nations, the European Union or

other entities. Institutions and organizations cannot act if States lack the political will

to support them. The advances in humanitarian law itself and humanitarian action on

the ground are to be welcomed, but any euphoria occasioned by that is checked by

the many instances of half-hearted or non-existent implementation of the law.

What is especially important in our present context is that the conduct of war

has changed. Battles such as Solferino, in which two armies faced each other on a

field, no longer take place. The terrible confrontations between mechanized armies

that characterized the two World Wars are also probably a thing of the past. Today,

nationalist insurgencies and guerrilla wars are far more frequent than wars between

States. More often than not, wars now take the form of conflicts between rebels and

governments – such as the conflict in Sudan – or of clashes among gangs, clans and

warlords in failed States, as has been the case in Somalia, Sierra Leone and Liberia.

In addition, instead of uniformed soldiers in regular armed forces, we see, increas-

ingly, irregular combatants and other fighters under the command of warlords. At the

same time, the traditional "citizen soldiers" of State armies are being replaced by

private armies: tens of thousands of personnel from private security firms are de-

ployed in Iraq alone718. One may well ask whether the sort of warfare for which inter-

national humanitarian law was originally designed still exists.

ing, 2007, pp. 1 et seq.

718 L. Cameron, “Private Military Companies: their Status under International Humanitarian Law and its Im-

pacts on their Regulation”, International Review of the Red Cross, Vol. 88, No. 863 (2006); D. Thürer and

M. MacLaren, “Military outsourcing as a case study in the accountability and responsibility of power”, in A.

Reinisch and U. Kriebaum (eds), The Law of International Relations: Liber Amicorum Hanspeter Neuhold,

Utrecht, Eleven International Publishing, 2007, pp. 391 et seq.; see supra Chapter VI.

334

In conclusion: the nature of war has changed over time719. Neither the epic

contests of Homeric heroes nor massive confrontations between armies is represent-

ative of war today, but armed conflict within the boundaries of one country or a hybrid

of internal and international armed conflict is. Wars are very seldom conducted on

clearly defined battlefields; they take place in towns and cities, streets, squares and

fields, and in areas stretching over huge distances. Increasingly, military operations

are being carried out by electronic means and at a distance from those conducting

them. The new patterns of warfare have been described by one expert as "wars

between people"720; but international humanitarian law was developed to deal with

wars between soldiers. “Wars between people” are characterized by attacks on the

civilian population and by extreme brutality. Because of that, laws for limiting the use

of force have to be further developed, on the international or the domestic plane, and

in the form of legally binding rules or general codes of conduct721. Whatever form they

take, such rules are a necessity in any civilization based on the rule of law.

II. Fundamental challenges: Assessing the state of international human -

itarian law

To assess the effectiveness of a body of law such as humanitarian law, we

must use four criteria. One: Are its rules still pertinent and adequate? Do they meet

the actual needs of society at present? The main issue before the international com-

munity in recent years has been the efficacy of humanitarian law in the struggle

719 See H. Münkler, Der Wandel des Krieges: Von der Symmetrie zur Asymmetrie, Weilerswist, Velbrück

Wissenschaft, 2006.

720 R. Smith, The Utility of Force: The Art of War in the Modern World, London, Allen Lane, 2006, p. XIII.

721 T. Pfanner, “Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action”,

International Review of the Red Cross, Vol. 87, No. 857 (2005), pp. 149 et seq.

335

against terrorism or - as the United States, after the events of 11 September 2001,

refered to until recently as - "war on terror."722 Two: Is the system inherently compre-

hensive in terms of what Sir Hersch Lauterpacht called the "reign of law," i.e. the prin-

ciple that no one – no matter how powerful – is above the law? To put it more spe-

cifically, does international humanitarian law permit a "legal vacuum," as the US gov-

ernment claimed in connection with the detention camp in Guantánamo Bay? Three:

Are the issues in question adequately dealt with by treaty law? If not, is there a com-

prehensive body of customary international law or general principles of law to fill the

gaps left by traditional treaty law codifications? Four: Are the rules effective in prac-

tice, and are there procedures in place to ensure their implementation? Is the system

riddled with serious and inherent weaknesses when it comes to implementation?723

A. International humanitarian law and the "war on terror"

In response to the attacks of 11 September 2001, George W. Bush, the pres-

ident of the United States at the time declared "war" on international terrorism. He

was using the word "war" not figuratively (as in the "war on poverty” or the "war on

drugs”), but literally and with all the legal implications. On closer examination, how-

ever, one sees that a distinction must be drawn between anti-terrorism measures that

722 See for a ius ad bellum-analysis e.g. M. Schmitt, “Responding to Transnational Terrorism under the Jus ad

Bellum: A Normative Framework,” in M. Schmitt and J. Pejic (eds), International Law and Armed Conflict:

Exploring the Faultlines – Essays in Honour of Yoram Dinstein, Leiden/Boston, Martinus Nijhoff, 2007, pp.

157 et seq.

723 See D. Thürer, “Humanitäres Völkerrecht und amerikanisches Verfassungsrecht als Schranken im Kampf

gegen den Terrorismus“, Zeitschrift für Schweizerisches Recht, 2006, pp. 157 et seq.; D. Thürer,

"Guantánamo: ein 'Legal Black Hole’ oder ein System sich überschneidender und überlagernder

'Rechtskreise’?", Schweizerische Zeitschrift für internationales und europäisches Recht, Vol 14 (2004), pp. 1

et seq.

336

are part of armed conflict, whether international or non-international, and straightfor-

ward anti-crime measures. In terms of armed conflict, i.e. with regard to the military

action taken by the United States and its coalition partners in Afghanistan between

2001 and 2002, humanitarian law proved relevant and adequate. No one could seri-

ously argue that the law shouldn’t be fully applicable to such quite traditional forms of

war, even if they are promoted as anti-terrorism measures. But to apply the rules of

humanitarian law to every measure linked to the worldwide anti-terrorism effort would

run counter to its substance, purpose and spirit. Humanitarian law permits intrusions

into people's lives and abridgement of their freedom that can be justified only in the

extreme circumstances of war. And – a fact apparently not understood in Washington

then – it stipulates rights and obligations equally, for all warring parties. The various

panel sessions of experts that took place after the 11 September attacks revealed a

broad consensus: even after the emergence of modern transnational terrorism, hu-

manitarian law had lost none of its relevance or effectiveness and no fundamental re-

form of the law was required.

B. Are there gaps in the protection afforded by international law?

The Guantánamo Bay detention camp has hundreds of inmates – combatants

captured in Afghanistan and alleged common criminals – who have been deprived of

all their rights under humanitarian law, international human rights law and the US

Constitution. The facility represented an attempt to create a legal no-man's-land, and

its existence raised this question: Is international humanitarian law incomplete? To

take one particular instance: the administration of President Bush claimed the exist-

ence of a category of "unlawful (enemy) combatants" that consisted of persons who

337

carried out hostile acts that were not permitted by humanitarian law724. The US policy

questioned the applicability of humanitarian law in this instance: it implied that unlaw-

ful combatants were not covered by any of the four Geneva Conventions, even with

regard to the rights of captured persons – as laid down in Article 5 of the Third

Geneva Convention (on protecting prisoners of war) – to have a competent, inde-

pendent and impartial court determine their status (that is, whether they were entitled

to be regarded as prisoners of war)725. It is interesting to note that the US Supreme

Court, in the Hamdan case726, declared itself, by a decision of five to three, at least

partly opposed to the stance taken by the executive branch of government. The

Court did not pronounce on whether the Third Geneva Convention as a whole was

applicable, but it ruled that at least a section of it – common Article 3 – applied:

“Common Article 3, by contrast, affords some minimal protection, falling short of full

protection under the Conventions, to individuals associated with neither a signatory nor

even a nonsignatory `Power’ who are involved in a conflict ‘in the territory of’ a

signatory. The latter kind of conflict is distinguishable from the conflict described in

Common Article 2 chiefly because it does not involve a clash between nations (whether

signatories or not). In context, then, the phrase ‘not of an international character’ bears

its literal meaning.”727

724 . See, e.g., J. C. Yoo and J. C. Ho, “The Status of Terrorists”, Virginia Journal of International Law, Vol. 44

(2003-2004), pp. 207 et seq.; M. Sassòli, “Combatants,” in R. Wolfrum (ed.), The Max Planck Encyclopedia

of Public International Law, Oxford, Oxford University Press, 2008, online edition available at: <www.m-

pepil.com>, accessed August 2010; J. Pejic, “’Unlawful/Enemy Combatants:’ Interpretations and Con-

sequences,” in M. Schmitt and J. Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines

– Essays in Honour of Yoram Dinstein, Martinus Nijhoff, Leiden/Boston, 2007, pp. 335 et seq.

725 As the general framework of the law on prisoners of war see A. Rosas, The Legal Status of Prisoners of

War, Turku/Ǻbo, Institute for Human Rights, Ǻbo Akademi University, 1976/2005.

726 US Supreme Court, Hamdan v. Rumsfeld, Secretary of Defense, et al., Judgement, 29 June 2006, No. 05-

184.

727 Op.cit., supra note 708, p. 67.

338

The judgment goes on to say that the military commissions in Guantanamo Bay did

not meet the minimum procedural requirements of common Article 3 and were

therefore inadequate for determining the legal status of inmates:

“Common Article 3 obviously tolerates a great degree of flexibility in trying individuals

captured during armed conflict; its requirements are general ones, crafted to

accommodate a wide variety of legal systems. But requirements they are nonetheless.

The commission that the President has convened to try Hamdan does not meet those

requirements.”728

Also, the Court makes explicit reference to the rule of law:

“… in undertaking to try Hamdan and subject him to criminal punishment, the Ex-

ecutive is bound to comply with the Rule of Law that prevails in this jurisdic-

tion.”729

A few months later, the US Congress passed the Military Commissions Act of

2006 (MCA). It codified and therewith legalized military commissions, with some ad-

justments, in a manner reflective of the commissions President Bush had previously

created by executive order. In doing so, Congress at least partly overruled the Su-

preme Court’s findings in Hamdan. And although it took into account some of the Su-

preme Court’s findings (such as the principle that an accused cannot be excluded

from his own trial), it legitimized the commission process by deciding that it satisfied

the requirements of common Article 3 and by amending the Uniform Code of Military

Justice (UCMJ). In addition, the MCA made it clear that no unlawful combatant may

invoke the Geneva Conventions as a source of law at a military commission trial730.

728 Op. cit., supra note 708, p. 72.

729 Op. cit., supra note 708, p. 72.

339

This interpretation, stated openly by the US administration at the time and ex-

pressly in the MCA, is highly contestable: as several international lawyers have

shown, extremely persuasively, there are no grounds for maintaining that unlawful

combatants are not entitled to any protection whatsoever under international human-

itarian law731. Articles 16 and 4 (2) of the International Covenant on Civil and Political

Rights provide that all persons have the non-derogable human right to recognition

before the law. The ICRC’s Commentary on the Fourth Geneva Convention points

out that:

“[It is] a general principle which is embodied in all four Geneva Conventions of 1949

[that] every person in enemy hands must have some status under international law: he

is either a prisoner of war and, as such, covered by the Third Convention, a civilian

covered by the Fourth Convention, or again, a member of the medical personnel of the

armed forces who is covered by the First Convention. There is no intermediate status;

nobody in enemy hands can be outside the law.” 732

Thus, all detainees are either entitled to prisoner-of-war status under Geneva Con-

vention III or have to be classified as “civilians” under Geneva Convention IV. The In-

730 Military Commissions Act 2006, chapter 47A, sub-chapter I, para. 948 B (f); see also, A.H. Garrison, “Ham-

dan v. Rumsfeld, military commissions, and Acts of Congress: A summary”, American Journal of Trial Ad-

vocacy, Vol. 30 (2006-2007), pp. 339 et seq.

731 See, e.g., K. Dörmann, “The legal situation of ‘unlawful/unprivileged Combatants’”, International Review of

the Red Cross, Vol. 85, No. 849 (2003), pp. 45 et seq.; G. Rona, “International Law under Fire: Interesting

times for International Humanitarian Law: Challenges from the ‘War on Terror’”, Fletcher Forum of World

Affairs, Vol. 27, No. 2 (2003), pp. 65 et seq. Likewise, the MCA seems to be in violation of the US Constitu-

tion, especially with regard to the right of habeas corpus, as the Supreme Court recently ruled: see US Su-

preme Court, Boumediene v. Bush, President of the United States, Judgment of 12 June 2008, No. 553 U.S.

(2008).

732 J. Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949 relative to the Protection of Civil -

ian Persons in Time of War, Geneva, ICRC, 1956, p. 51.

340

ternational Criminal Tribunal for the Former Yugoslavia reached the same conclusion

in Prosecutor v. Delalic:

“It is important, however, to note that this finding is predicated on the view that there is

no gap between the Third and the Fourth Geneva Conventions. If an individual is not

entitled to the protections of the Third Convention as a prisoner of war (or of the First or

Second Conventions) he or she necessarily falls within the ambit of Convention IV,

provided that its article 4 requirements are satisfied.”733

Those civilians who have committed terrorist acts can still be subjected to the meas-

ures set out in the Fourth Geneva Convention, e.g. interrogation and detention for the

duration of the conflict, or to criminal prosecution and punishment under domestic

law. But even if Geneva Conventions III and IV don’t apply, e.g., because a detainee

does not fulfil the nationality criteria set out in Article 4 of these Conventions, Article

75 of Additional Protocol I provides for a minimum protection for everyone that must

be respected in all circumstances734:

“1. (…) persons who are in the power of a Party to the conflict and who do not benefit

from more favourable treatment under the Conventions or under this Protocol shall be

treated humanely in all circumstances and shall enjoy, as a minimum, the protection

provided by this Article without any adverse distinction based upon race, colour, sex,

language, religion or belief, political or other opinion, national or social origin, wealth,

birth or other status, or on any other similar criteria (…).”

Article 45 (3) of Additional Protocol I explicitly recognizes the application of Art-

icle 75 to unlawful combatants:

733 ICTY, Prosecutor v. Delalic, Judgement, 16 November 1998, Case No. ICTY-96-21, para. 271; see also

High Court of Justice of Israel, The Public Committee against Torture in Israel, et al. v. The Government of

Israel, et al., Judgement, 13 December 2006, Case No. HCJ 769/02, para. 28.

734 This Article can be considered customary international law and, therefore, applicable to US military actions;

see, e.g., Dörmann, op. cit., supra note Error: Reference source not found, p. 70.

341

“3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war

status and who does not benefit from more favourable treatment in accordance with the

Fourth Convention shall have the right at all times to the protection of Article 75 of this

Protocol (…).”

One may conclude that, in general, the cases involving the Guantánamo detainees

demonstrate that international humanitarian law does provide an adequate legal

basis for the protection of prisoners. But these cases are also reminders of the polit-

ical and practical problems that constantly thwart implementation of the law.

However, on 21 January 2009 the White House announced that President

Barack Obama had signed an executive order suspending the proceedings of the

Guantánamo military commission for 120 days and that the detention facility would

be shut down within the year735. Although the US government has not – for political

reasons – taken this step yet, there are nevertheless clear signs pointing towards

more lawful behaviour in the future. For example, the Obama administration does not

use the term “war on terror” or others created by the Bush administration in relation

to this issue. They have also announced plans to phase out the term “enemy com-

batant”. While making this announcement, the US Department of Justice said that in

future, suspects would be held in accordance with the standards set by the interna-

tional laws of war736.

735 M. Mazzetti and W. Glaberson, "Obama Issues Directive to Shut Down Guantánamo", The New York Times,

21 January 2009, available at: <http://www.nytimes.com/2009/01/22/us/politics/22gitmo.html>, accessed

August 2010.

736 BBC News, 13/03/2009, available at: <http://news.bbc.co.uk/2/hi/americas/7943114.stm>, accessed August

2010; see also D. Wilber and P. Finn, “U.S. retires 'enemy combatant,' keeps broad right to detain”, The

Washington Post, 14 March 2009.

342

C. Is the law incomplete?

International humanitarian law is intended to be universal. The four Geneva

Conventions have become universally applicable now that all the 194 States in the

world are party to them. This is not yet the case for the two Additional Protocols of

1977. Important States that are involved in acute international crises or face that pos-

sibility – the US, India, Pakistan, Iraq, Iran and Israel – are not yet bound by Addi -

tional Protocol I. States that are at present particularly afflicted by internal violence –

Nepal and Myanmar – have declined to become party to Additional Protocol II. Faced

with waning enthusiasm for treaty ratifications, the 26th International Conference of

the Red Cross and Red Crescent, which was held in 1995, assigned to the ICRC the

task of carrying out a survey of the customary rules of humanitarian law that are ap-

plicable in both international and non-international armed conflicts. In 2005, the ICRC

published a two-volume work737 that explores the extent to which international hu-

manitarian law now has the force of customary law. As the President of the ICRC,

Jakob Kellenberger, put it, it is the clearest possible "photograph" of this body of

law738.

The study represents a historically unique and monumental exercise in the

systematic compilation of international law739. It is not yet certain whether States will

recognize as customary law all the rules identified by experts. Nevertheless, it is

737 L. Doswald-Beck and J.-M. Henckaerts (eds), Customary International Humanitarian Law, Cambridge,

Cambridge University Press, 2005; Y. Dinstein, “The ICRC Customary International Humanitarian Law

Study”, Israel Yearbook on Human Rights, Vol. 36 (2006), pp. 1 et seq.

738 See foreword by J. Kellenberger, in L. Doswald-Beck and J.-M. Henckaerts, op. cit., supra note Error: Ref-

erence source not found, p. xi.

739 Y. Daudet, ”Actualités de la codification du droit international”, Recueil des cours, Vol. 303 (2003), pp. 9 et

seq.

343

striking that the experts found that most of the rules enshrined in treaty law have the

force of customary law and are therefore binding on all States, and that these rules

have also attained customary force in internal armed conflict.

It is also worth mentioning an endeavour to codify the minimum humanitarian

standards that must be met in situations of internal violence, regardless of the cir -

cumstances: these standards would apply even when the threshold of non-interna-

tional armed conflict has not been reached and – because a state of emergency is in

force – when international human rights guarantees have, apart from an inalienable

core, been suspended. Unfortunately, the private initiative to bring this about – the

Turku Declaration of 1990 – has not yet been, and probably will not be, formally ad-

opted by international institutions740.

For these reasons, humanitarian law can no longer be considered as merely

an aggregation of treaty norms that States Parties once ratified, but as a growing and

increasingly compact system of norms from different sources. Nevertheless, given

their relative lack of effectiveness, we must face the fact that the implementation of

all theoretically imposed obligations is still far from assured.

D. Weaknesses in implementation

740 See T. Meron, “Contemporary Conflicts and Minimum Humanitarian Standards”, in K. Wellens (ed.), Inter-

national Law: Theory and Practice: Essays in Honour of Eric Suy, The Hague, Martinus Nijhoff, 1998, pp.

623 et seq.; H.-P. Gasser, “Humanitarian standards for internal strife: A brief review of new developments”,

International Review of the Red Cross, Vol. 75, No. 801 (1993), pp. 221 et seq.; T. Buergenthal and D.

Thürer, Menschenrechte – Ideale, Instrumente, Institutionen, Zurich/Baden-Baden, Dike and Nomos, 2009,

pp. 104 et seq.

344

The conclusions of the ICRC study on customary law regarding the rules of

humanitarian law are impressive. But this has not preserved the law from attack: it

has been sharply criticized for failing, or seeming to fail, to effect material change in

the conduct of hostilities. The fact is that the implementation of humanitarian law –

just as the implementation of other branches of international law – depends to a large

extent on the political willingness of States, despite the fact that the four Geneva

Conventions contain a monitoring mechanism for States Parties that are not directly

involved. This mechanism consists of a system of Protecting Powers (which, it is

true, has never been implemented) and the ICRC’s mandate (effective in practice) for

the purpose of guaranteeing compliance. Nevertheless, in the matter of compliance

the situation has improved. The main factor here is the growing role of the courts.

The war crimes tribunals in Nuremberg and Tokyo were monumentally important in

the effort to improve the effectiveness of international humanitarian law. They paved

the way for the creation of the Ad hoc-Tribunals for the former Yugoslavia and for

Rwanda, which were set up by the UN Security Council in 1993 and 1994 respect-

ively. Of even greater importance – as I tried to explain in the third chapter – was the

establishment of the ICC, which was based on the Rome Statute of 1998. The pur-

pose of these institutions is to make the universal jurisdiction provided for in the four

Geneva Conventions, for the prosecution and judgment of war criminals, a reality. As

mentioned earlier, the International Court of Justice, too, has addressed fundamental

questions of humanitarian law on several occasions741. In addition, human rights sys-

741 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found; ICJ, Case Concerning Military and Paramilitary Activities In and Against

Nicaragua, Judgment of 27 June 1986, supra note Error: Reference source not found; ICJ, Case concerning

the Corfu Channel, Judgment of 15 December 1949, ICJ Reports 1949, pp. 244 et seq.; ICJ, Legal Con-

sequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion of 9 July

2004, ICJ Reports 2004, pp. 136 et seq.

345

tems increasingly provide for proceedings before courts (international or regional),

and for commissions to supervise the implementation of treaties. And it is also pos-

sible to base the proceedings that take place before the political organs of interna-

tional organizations, or – most importantly – of States, on humanitarian law. As the

UN Security Council reminded the belligerents during the Balkan conflict, "all parties

are bound to comply with the obligations under international humanitarian law and in

particular the Geneva Conventions of 12 August 1949."742 In the future, domestic

courts will doubtless also play an increasing role in enforcing implementation743.

It is, after all, the task of law to set limits. I am of the opinion that law and legal

(and political) institutions can shape minds. They can erect walls to protect and to

prevent. Let me offer you an alternative framework to consider.

III. The walls of the law

Over the course of time, human beings have gradually built up impressive

State systems. Ideally, States should be governed by law and based on the prin-

ciples concerning the rule of law (Rechtsstaat or Verfassungsstaat, or Etat de droit).

They are expected to protect their citizens and promote their welfare. However, when

State structures collapse completely, the international community is required to step

742 UN Security Council, Resolution 764 (1992), 13 July 1992, para. 10.

743 See, e.g., 1.The Public Committee against Torture in Israel; 2. Palestinian Society for the Protection of Hu-

man Rights and the Environment; 3. The Government of Israel; 4. The Prime Minister of Israel; 5. The Min-

ister of Defense; 6. The Israel Defense Forces; 7. The Chief of the General Staff of the Israel Defense Forces;

8. Shurat HaDin – Israel Law Center and 24 others; 9. High Court of Justice of Israel: see in particular Case

No. HCJ 769/02, No. 61.

346

in and fulfil its “responsibility to protect”744. Mankind has thus succeeded, under the

law and by means of the law, to establish admirable systems of norms and public in -

stitutions. Ideally, such systems should enable people to live together in a more or

less just, peaceful and orderly way.

There is one feature of State constitutional systems that is generally taken for

granted; it is, in fact, the result of arduous and protracted struggles. I am referring to

the substantial disarmament on the domestic level that has generally taken place:

within States, the risk of armed violence has therefore been reduced. Police and na-

tional armed forces have been given, under the law, monopoly powers with regard to

the possession and use of arms. This is one of the most essential achievements of a

civilized society. Yet it was not always thus.

States that are consolidated to a lesser degree, and the international system

as a whole, are much weaker, and sadly underdeveloped. Violence breaks out fre-

quently and is a constantly looming threat. The use of force threatens to shake the

world order, which suddenly seems no more stable than a house of cards. We seek

arms control and disarmament, hoping to reduce the risk of weapons use. But the

results have been discouraging. Why is it that human beings are able to live together

within some States in a more or less secure environment, whereas peace within

other States and between States seems to be much more fragile and elusive? Why is

it that, within States, legal systems can be built on peace and justice, whereas a sort

of Weltinnenpolitik (i.e. global domestic policy or politics), as was suggested by Carl

Friedrich von Weizsäcker, seems to be only a remote possibility?

744 International Commission on Intervention and State Sovereignty, op. cit., supra note Error: Reference source

not found.

347

I believe that institutions shape and direct human behaviour. They provide

“walls” that check aggressive impulses. Should it not be possible to create and

strengthen, in the wider world, systems of order comparable to those that have been

created within States? State systems did not emerge overnight. Time, imagination,

energy, political will and good fortune were all needed. Much depends on the way we

see and think. Theories and visions are important.

Given the modest achievements of the international order should we not at-

tempt to have the existing walls in the system strengthened and to build new walls? I

see three points of reference that might help us feel more optimistic about our shared

system of international law: the Martens Clause, general principles of law and consti-

tutional methods of interpreting the international legal system.

A. The Martens Clause

This clause was first proposed in 1899 by Frédéric de Martens, an eminent jur-

ist and the Russian delegate to the Hague Peace Conferences745, and subsequently

reformulated in later treaties746 of humanitarian law. Its most recent version, con-

tained in Article 1 (2) of Additional Protocol I, states the following:

“In cases not covered by this Protocol or by other international agreements, civilians

and combatants remain under the protection and authority of the principles of interna-

745 J. Kross, Professor Martens’ Departure: A Novel, New York, The New Press, 1994.

746 The original text states: "En attendant qu’un code plus complet des lois de la guerre puisse être édicté, les

Hautes Parties contractantes jugent opportun de constater que, dans les cas non compris dans les dispositions

réglementaires adoptées par elles, les populations et les belligérants restent sous la sauvegarde et sous l’em-

pire des principes de droit des gens, tels qu’ils résultent des usages établis entre nations civilisées, des lois de

l’humanité et des exigences de la conscience publique.”

348

tional law derived from established custom, from the principles of humanity and from

dictates of public conscience.”747

Professor V.S. Mani has called the Martens Clause “a masterpiece of norm-set-

ting in international law”748. Theodor Meron, former President of the International

Criminal Tribunal for the former Yugoslavia emphasized the “rhetorical and ethical

strength of its language” and suggested that these qualities “perhaps best explains

its continuing influence on the formation and interpretation of the law of war and inter-

national humanitarian law”749. But the Martens Clause is a very ambiguous norm750.

Two questions in particular arise. First, does the Martens Clause refer to a source of

norms outside treaty law and customary law? And second, what do the phrases “the

principles of humanity” and “dictates of public conscience” mean?

With regard to the first question, the norms referred to are, as has been con-

vincingly argued by most commentators, not outside the law751: they do not have a

747 A. Cassese, “The Martens Clause: Half a loaf or simply pie in the sky?”, European Journal of International

Law, Vol. 11, No. 1 (2000), pp. 187 et seq.

748 V.S. Mani (ed.), Handbook of International Humanitarian Law in South Asia, New York/New Delhi, Oxford

University Press, 2007, p. 18.

749 T. Meron, The Humanization of International Law, Leiden/Boston, Martinus Nijhoff, 2006, p. 18.

750 For overviews and interpretations, see, e.g., F. Münch, “Die Martens’sche Klausel und die Grundlagen des

Völkerrechts”, Heidelberg Journal of International Law, Vol. 36 (1976), pp. 347 et seq.; A. Cassese, op. cit.,

supra note Error: Reference source not found; R. Schircks, Die Martens’sche Klausel: Rezeption und Recht-

squalität, Baden-Baden, Nomos, 2002; ICJ, Dissenting Opinion of Judge Shahabuddeen on the ICJ’s Advis-

ory Opinion Legality of the Threat or Use of Nuclear Weapons of 8 July 1996, supra note Error: Reference

source not found, pp. 405 et seq.

751 For a dissenting opinion, see A. Cassese, op. cit, supra note Error: Reference source not found, p. 187: “The

Martens Clause is indisputably one of the contemporary legal myths of the international community” and pp.

193 et seq.

349

meta-legal character. Rather, they have a place within the legal system, and the

Clause itself is part of the legal system. However, this does not undo the visionary

impulse of the Martens Clause. As Theodor Meron has pointed out, the Clause sup-

ports and strengthens international humanitarian law. First: The Martens Clause

guarantees that international customary law will still apply to States that are no longer

bound by treaties of international humanitarian law. Principles of customary interna-

tional law remain binding even if a State has renounced its corresponding treaty ob-

ligations. Second: Customary international law continues to apply even after the ad-

option of a treaty norm that is more elaborate and more precise752. Thus, customary

law continues to provide a safety net of last resorts that might, so to speak, not make

for a comfortable fall, but that will prevent a catastrophe. Third: In case of doubt, the

Martens Clause serves as a guide for the interpretation of international humanitarian

law, the rules and principles of which should be understood in conformity with the

principles of humanity and the dictates of public conscience. So, the Clause serves,

in addition, to avoid a non liquet. However, Meron pleads against pushing the

Martens Clause “beyond reasonable limits.” “Governments,” he argues, “are not yet

ready to transform broad principles of humanity and dictates of public conscience into

binding law.”753

I would, however, come to a different conclusion. I do not think that the Clause

intends only to restate the customary law in force. Its wording rather seems to sug-

752 See, e.g., N. Singh and E. McWhinney, Nuclear Weapons and Contemporary International Law, 2nd ed.,

Dordrecht, Martinus Nijhoff, 1989, p. 47; or Ch. Greenwood, “Historical development and legal basis”, in D.

Fleck (ed.), The Handbook of International Humanitarian Law, 2nd ed., Oxford, Oxford University Press,

2008.

753 T. Meron, supra note Error: Reference source not found, p. 28.

350

gest that it refers to a source outside customary and treaty law: general principles of

law754. We shall consider this thesis in a moment.

With regard to the second question - what is meant by “principles of human-

ity”? - in the light of contemporary humanitarian law, it might be safe to assume that

the Clause refers to the “elementary principles of humanity” as established by the In-

ternational Court of Justice in the Corfu Channel and Nicaragua cases755 and con-

tained in common Article 3756.

The reference to “dictates of public conscience” is more enigmatic. It sounds

very modern757. In his time, Woodrow Wilson equated “public conscience” with “public

opinion”. The growing influence of civil society and its networks of NGOs on interna-

tional norm-setting and norm-application seems to support this position. But let us be

cautious: was not fascism strongly supported by the vox populi, at least in the begin-

ning, all over Europe and outside Europe? The same might be said of communism.

More recently, acts of war in the Balkans were fuelled by ethnic hatred: it must be ac-

knowledged that the leaders of the various factions were instrumental; nevertheless,

the point stands. And in Rwanda, broadcasts by a radio station named “Mille Col-

lines” consistently advocated genocide. Hatred inflames public opinion in wartime. 754 See R. Schircks, supra note Error: Reference source not found, pp. 170 et seq.

755 ICJ, Case concerning the Corfu Channel, Judgement of 9 April 1949 (Merits), ICJ Reports 1949, p. 22; ICJ,

Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Judgment of 27 June 1986

(Merits), ICJ Reports 1986, p. 114, paras 215 and 218.

756 M. Veuthey, “Public conscience in international humanitarian action”, Refugee Survey Quarterly, Vol. 22

(2003), p. 224.

757 One can find in the literature other synonymous expressions as well: the conscience juridique du monde

civilisé, the conscience juridique universelle, the conscience de la communauté internationale, the opinion

publique and the legal conscience of people.

351

Enraged leaders and their followers often do not hesitate to carry out reprisals

against civilians or to take hostages. Therefore, “public conscience” may be, and very

often is, a moral impulse calling for criticism, or condemnation of, abuses of power as

well as for reform. It is not, however, always an enlightened, or a reliable, guide.

B. General principles of law

You may remember mention being made of the “minimum standards of hu-

manity”. Earlier, we said that the principle of proportionality was regarded as a gen-

eral principle of law. There are others: the principle of distinction, the prohibition of at -

tacking the civilian population, the prohibition of inflicting superfluous suffering, basic

principles concerning means and methods of warfare, etc. This brings us to a more

general concern: the question whether general principles of law should, as such, be

understood in a much broader and more basic sense than is the case today. In my

opinion, it is to this kind of source of public international law that the Martens Clause

refers to.

As we know, “general principles of law” were recognized in the Statute of the

Permanent Court of International Justice as one of the sources of international law

besides treaty and customary law758. The provision was carried over to the Statute of

the International Court of Justice, which in Article 38, para. 1, lit. c refers to “the gen-

eral principles of law recognized by civilized nations.”759 Thus, “general principles of

law” are officially recognized as one of the three formal sources of international law.

758 See J. Spiropoulos, Die allgemeinen Rechtsgrundsätze im Völkerrecht, Kiel, Universität Kiel, 1928, passim.

759 See the memorandum of the Informal International Allied Commission: “The law to be applied by the Court

is fixed by Article 38 of the Statute, and although the text of this provision gives rise to possible criticism, it

has been proven in practice and we recommend it to be included.” (UNCIO, Vol. XIV, pp. 435 et seq.).

352

But, the official use made of this source has been rather limited760. One reason might

be the normative context in which the provision was placed: Article 38 of the Statute

determines and defines the rules to be applied by the International Court of Justice.

The drafters of the Statute seem to have included general principles as a source in

order to equip the Court with a set of principles to which it might have recourse if a

dispute could not be decided on the basis of treaty or customary law. Thus, the

raison d’être of lit. c probably was, first of all, to avoid a non liquet761. In its jurispru-

dence the Court recurred to “general principles” with caution, in order to avoid en-

croaching on State sovereignty762.

However, judicial settlements of disputes are, so it seems to me, not at the

centre of the functioning of international law. This is true at least with regard to con-

temporary practice. Article 38, para. 1, lit. c should therefore not be interpreted only

within the context of the ICJ’s rules of procedure, but in a broader sense. Let me

mention two aspects:

First: International law has lost its traditional inter-State character and de-

veloped into a much more diversified system of rules and actors. During a period of

transition, basing international law primarily on the consent of States, be it through 760 S. Jacoby, Allgemeine Rechtsgrundsätze: Begriffsentwicklung und Funktion in der Europäischen

Rechtsgeschichte, Berlin, Duncker & Humblot, 1997, pp. 184 et seq.

761 See, e.g., Sir H. Lauterpacht, “Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness

of the Law”, in J. H. W. Verzijl (ed.), Symbolae Verzijl, The Hague, Martinus Nijhoff, 1958, pp. 199 et seq.

762 See W. Friedmann, The Changing Structure of International Law, London, Stevens, 1964, p. 189: ”(…) in-

ternational judicial institutions, such as the International Court of Justice, depend for their jurisdiction, as

well as for the acceptability of their decisions and opinions, upon the consent of States. They therefore have

to exercise great caution in the application of general principles of law, lest they be accused of unauthorized

exercise of international legislation.”

353

treaties or custom, does not serve the needs of the modern international community.

A legal order for a modern, globalized society must be based on a much more flex-

ible set of general principles, whether it is for specific branches of law (such as inter -

national economic, environmental, or humanitarian law), or with regard to the system

of international law as a whole.

Second: In times of transition a door should always be left open to influences

stemming from general principles of justice or “natural law.” Clinging to rigid norms

that have lost credibility and effectiveness might undermine the authority of the law.

Is contemporary international law so hermetically sealed as to have no room at all for

the approaches chosen by Hugo Grotius, Francisco de Vitoria, Francisco Suarez,

Christian Wolff, Samuel Pufendorff, Emer de Vattel, Immanuel Kant and others? Are

the general principles of law not worth consideration, as one way to battle stagnation

and develop the law in times of transition?

When we mention influences derived from “natural law”, we are not, of course,

referring to principles borrowed or deduced from theology, or to “pure” rationality. It

seems to me pointless to search the skies, as it were, to give substance and shape

to the general principles of law763. They seem to grow from the bottom upwards. They

seem to emerge from injustices, from “colère public”, in the words of Emile Durkheim.

Experiences of injustice can prevent or at least slow down recurrence of such, as

Alan Dershowitz764 has convincingly demonstrated in the context of domestic law.

The results of a survey of people’s views on war, carried out by the ICRC in 1999,

763 A. Verdross, “Les Principes généraux du droit dans la jurisprudence internationale“, Recueil des cours, Vol.

52 (1935), pp. 191 et seq.

764 A. Dershowitz, Rights from Wrong: A Secular Theory of the Origins of Rights, New York, Basic Books,

2004.

354

may be of interest to us. The survey found that “there is a near-universal belief that

the growing threat to the civilian population is wrong, that some things just should not

be allowed in war. Indeed, the more the conflicts have degenerated into wars on civil -

ians, the more people have reacted by reaffirming the norms, traditions, conventions

and rules that seek to create a barrier between combatants and civilians.”765

It seems to me that more extensive use should be made of the general prin-

ciples of law. Bert V.A. Röling, the Dutch judge on the Military Tribunal for the Far

East, was of the opinion that it was up to international lawyers to discover the “natural

law of the atomic age,” together with “natural law of a democratized world” 766, This –

Röling said – would enable us to find out the means by which natural law could be

translated into positive, binding law in international relations.

To sum up: In the seventeenth and eighteenth centuries international lawyers

frequently invoked the law of nature; then, from the nineteenth century onwards, cer-

tain branches of international law, such as humanitarian law, were successfully codi-

fied. These rules are still being applied in the spirit of the nineteenth century; and the

approach that is used is based on pseudo-scientific positivist methods of reasoning.

This is especially true for humanitarian law. However, general principles of law, which

are regarded as the basis of a “civilized society,” should be given more consideration

as a basis also of international humanitarian law. Common Article 3 may be con-

sidered a focal point. Its provisions were characterized by the International Court of

Justice as “elementary principles of humanity.”

765 International Committee of the Red Cross, People on War (Report by Greenberg Research Inc.), Geneva,

1999, p. vi.

766 B.V.A. Röling, The Tokyo Trial and Beyond: Reflections of a Peacemonger, Cambridge, Polity Press, 1993,

p. 113.

355

C. Constitutional paradigm?

Constitutionalization in international law

Finally, let us consider “constitutionalism” as a method for preconceiving hu-

manitarian law. Constitutionalism in international law is a complex idea. Traditionally,

the term ‘constitutional law or ‘constitutional system’ has had relevance only in a na-

tional context. Since the end of the Cold War, however, the concept of constitutional-

ism has been the subject of growing international debate767. This debate has occu-

pied itself with one question mainly: Has international law, particularly over the last

two decades, changed so profoundly that, increasingly, one can find in it elements

that can be considered “constitutional” in various ways? And, a related question: Is

something like a “world constitution” likely to emerge as a result? This does not mean

that the “constitutionalist” school of thought is advancing the claim that the interna-

tional system is built on a constitutional order comparable to that of a State; but it

does mean that this school of thought tries to interpret basic principles of interna-

tional law as it would the constitution of a State.

767 See, e.g., A. von Bogdandy, "Constitutionalism in International Law", Harvard International Law Journal,

Vol. 47 (2006), pp. 223 et seq.; A. Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, Berlin, Duncker &

Humblot, 2007; J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law, Ox-

ford, Oxford University Press, 2009; M. Koskenniemi, “Constitutionalism as a mindset: Reflections on Kan-

tian themes about international law and globalization”, Theoretical Inquiries in Law, Vol. 8 (2007), pp. 9 et

seq.; E. de Wet, “The International Constitutional Order”, International and Comparative Law Quarterly,

Vol. 55 (2006), pp. 51 et seq.

356

International law has indeed been profoundly altered over the last few dec-

ades. The traditional approach, based on the sovereignty of States, has, over time 768,

gradually given way to one based on human beings – a development that is espe-

cially evident in all the international human rights treaties after World War II, in inter-

national criminal law and in legal concepts like jus cogens. In Prosecutor v. Dusko

Tadic (7 May 1997), the International Criminal Tribunal for the former Yugoslavia re-

ferred explicitly to this development769. It is no longer only the pure will and interest of

the States that is decisive for the development of international law; more and more,

ideas like the public weal, the common interests of the international community and

the search for globally shared values of humanity determine the direction to be taken

by the law. This shift in emphasis has been accompanied by the re-humanization of

international law and the steady growth in importance of ethical and moral considera-

tions in international legal debates770.

The debate about constitutionalism raises a number of questions. These ques-

tions usually fall into three categories: 1. Is an international system of executive, le-

gislative and judiciary, i.e. a separation of powers in international law emerging

(question of “constitutional” structure and organization)?. 2. Is a substantial, binding

order of universal values being formed (question of “constitutional” catalogue of sub-

768 See, e.g., B. Simma, “From bilateralism to Community Interest in International Law," Recueil des cours,

Vol. 250 (1994), pp. 217-384; Ch. Tomuschat, "Obligations Arising for States Without or Against Their

Will," Recueil des cours, Vol. 241 (1993), p. 195.

769 ICTY, Prosecutor v. Dusko Tadic, Judgment, 7 May 1997, International Legal Materials, Vol. 36 (1997),

pp. 908 et seq.

770 See, e.g., Ch. Tomuschat, "International law: Ensuring the Survival of Mankind on the Eve of a New Cen-

tury", Recueil des cours, Vol. 281 (1999), p. 10; T. Meron, op cit., supra note Error: Reference source not

found, pp. 239 et seq.

357

stantial values)?. 3. Are there certain rules of international law that take precedence

over others and can be compared to a constitution on the national level (question of

“constitutional” hierarchy)?771.

In this sense, there are, of course, quasi-constitutional elements that are dis-

cernible within the international legal order, which, admittedly, is only a fragmented

system consisting of various institutions that carry out executive, legislative or judi-

ciary functions: for example, the United Nations or the International Court of Justice.

This system, in which powers and functions are divided between international and

the national spheres and institutions bear some similarity to the checks and balances

of a constitutional system.772 It offers the common goals of the international com-

munity; the human rights standards which remind us of the bills of rights of national

constitutions; and an emerging level of “higher law” like jus cogens and provisions

with erga omnes effect.

However, one should be cautious when using the term “constitution” in the

context of international law, particularly because the structural and organizational ele-

ments on the international level can, even now, not be compared to a national consti -

tutional system. It would be better to talk about a “constitutional method” of construc-

tion or interpretation in debates about international law. Perhaps the terms “constitu-

771 See, e.g., A. von Bogdandy, op. cit., supra note Error: Reference source not found, pp. 223 et seq.; Ch.

Tomuschat, op. cit., supra note Error: Reference source not found, p. 10; E. de Wet, op. cit., supra note

Error: Reference source not found, pp. 51 et seq.; M. Allen, “Globalization and Peremptory Norms in

International Law: From Westphalian to Global Constitutionalism?”, International Politics, Vol. 41 (2004),

pp. 341 et seq.

772 B. Fassbender, The United Nations Charter and the Constitution of the International Community, Leiden/

Boston, Martinus Nijhoff, 2009.

358

tional core” or “elementary principles inherent to/behind the law” would be more ap-

propriate773. What I have in mind is an approach familiar within the British legal tradi -

tion: even though the concept of a formal constitution is alien to British law, there are

clear and time-honoured notions of constitutional principles and “rules of law” inher-

ent in the British legal tradition.

Constitutionalism as a method of construction

In this sense, constitutionalism means more than purely technical analysis of

the elements of international law in the light of national constitutional mechanisms. In

the current debate in international law theory, the constitutional method often serves

as a motor for “second order-thinking” beyond ordinary law: it seeks the elementary

principles above and within the law, extends the limits, geographical and temporal, of

debate, and admits ethical and moral considerations to the resolution of issues of in-

ternational law774. It appears to be a method that changes the inner dynamic of law

without necessarily changing its wording or its structure. It enables us to see law in a

different light while still recognizing and reinforcing it as law. It also enables us to see

international law as a complex field within a broad context of rules and principles,

legal, political, social, economic and ethical, written and unwritten.

773 D. Thürer, “International Humanitarian Law as a Core of a ‘Constitutional System’ of Public International

Law?”, in S. Baldini and G. Ravasi (eds), Humanitarian Action and State Sovereignty, (International Con-

gress on the Occasion of its XXXth Anniversary), San Remo 31 August – 2 September 2000, Milano, 2003,

pp. 46 et seq.

774 See also, J. Klabbers, A. Peters and G. Ulfstein, op. cit., supra note Error: Reference source not found, p.

352.

359

I will give two examples that may be illuminating. A few years ago, I dis-

covered, in a library in Geneva, a book by the Italian legal philosopher Cesare Bec-

caria: its title was Dei delitti e delle pene (Of crime and punishment in English, and in

French, Des délits et des peines) and it had been published in 1764. Beccaria had

succeeded, in his time, in revolutionizing the law of criminal procedure, which, in the

ancien régime, had been an instrument of arbitrary power for monarchs and their bur-

eaucracies. Beccaria had read Montesquieu, who wrote: “C’est de la bonté des lois

criminelles que dépend principalement la liberté du citoyen.” Beccaria inverted Mont-

esquieu’s perspective: for him, the quality of criminal legislation depended on the

freedom of the citizen and the quality of political institutions. Laws, Beccaria said, are

the expression of the founding social contract, which had human liberty at its core.

He caused a shift in emphasis: from studying the law of criminal procedure in isola-

tion to studying the bases of the legal order as a whole; as a result, the law of crim-

inal procedure came to be regarded as just one of the various aspects of the law un-

der the roof of the “contrat social” or – as we would say today – the common constitu-

tion. Robert Badinter, the French minister of justice who abolished the death penalty

in France, has said: “Cette pensée est d’abord une pédagogie de la liberté appliquée

dans un domaine jusque-là ignoré d’elle.” This educational aspect mentioned by Bad-

inter seems to me to be important: not at all a lofty set of abstract ideas, it can be in-

ternalized, embedded in the minds of officials and citizens, and take effect without

conscious decision-making.

My second example concerns Nelson Mandela. In his beautiful autobiography,

Long Walk to Freedom, Mandela, who had been sentenced by the apartheid regime

in South Africa to 27 years in prison, wrote: “In prison, my anger towards whites de-

creased, but my hatred for the system grew. I wanted South Africa to see that I loved

360

even my enemies while I hated the system that turned us against one another.” 775 Is

not this statement, too, a proof of the transforming power of constitutional thinking?

Was not Mandela’s vision of a just constitutional order realized, years later, in the

new, formal South African constitution that put an end to racial discrimination?

Constitutionalism in humanitarian law

International humanitarian law is a well-established field of international law

that is based on fundamental principles of humanity and on the desirability of depart-

ing from the exigencies of States’ will. Traditionally, the purpose of humanitarian law

has always been to ensure humane treatment for all persons affected by war: be-

cause of this, humanitarian law has, from the very beginning, been ruled by consider -

ations other than the interests of States776. It should not be surprising that several dis-

tinct constitutional approaches can be found in this body of law, whether it is in re -

sponding to the three questions mentioned above or in using constitutionalism to ex-

tend traditional legal thinking. Examples of both kinds of constitutional approach are

given below.

In terms of constitutional structure and organization, the executive functions of

international institutions in humanitarian law are, as is generally the case in interna-

tional law, not as developed as the legislative and judiciary functions, especially the

latter. The States themselves have the primary responsibility for implementing hu-

775 N. Mandela, Long Walk to Freedom, Boston/New York, Little, Brown and Company, 1994, p. 680.

776 See, e.g., W. Karl, “Das humanitäre Völkerrecht auf dem Weg vom Zwischenstaats - zum Weltrecht”, in W.

Benedek, H. Isak and R. Kicker (eds), Development and Developing International and European Law, Es-

says in Honour of Konrad Ginther on the Occasion of his 65th Birthday , Frankfurt am Main/New York, P.

Lang, 1999, p. 583; A. Emmerich, op. cit., supra note Error: Reference source not found, p. 1013.

361

manitarian law; there is a partial statement to this effect in Articles 47 and 49 of the

First Geneva Convention. The UN Security Council, the ICRC and several NGOs

also play an important role in implementing humanitarian law777. With regard to legis-

lative functions, it is again the States that play the most important role, by drafting,

signing and ratifying international conventions and treaties of international humanit-

arian law. A lot of other actors are also involved in this process of elaborating treat-

ies, particularly various United Nations agencies and the ICRC who participate in

drafting the texts of such international treaties778. Where constitutionalism in humanit-

arian law is concerned, it is the judiciary function that stands out: the International

Criminal Court (ICC) and various special tribunals punish crimes on an international

level - for instance, genocide, crimes against humanity, war crimes and crimes of ag-

gression779. In the last few years, the ICC and the special tribunals have grown in im-

portance as they have come to embody the collective responsibility of the global

community to deal with crimes against humanity780.

It is not difficult to single out fundamental principles of humanitarian law that

could be given a constitutional status. The fundamental principles of humanity, non-

discrimination, impartiality and neutrality that govern the conduct of humanitarian act-

ors – which are included in common Article 3 and to which the ICJ has referred in

many of its judgments781 – can certainly be considered to form part of an international

777 See W. Karl, op. cit., supra note Error: Reference source not found, pp. 586 et seq.; F. Kalshoven, The Im-

plementation of International Humanitarian Law, Boston/Norwell, Brill, 1989.

778 W. Karl, op. cit., supra note Error: Reference source not found, p. 582.

779 See Rome Statute of the International Criminal Court, Art. 5.

780 See, e.g.,W. Karl, op. cit., supra note Error: Reference source not found, p. 584.

781 See, e.g., ICJ, Case concerning the Corfu Channel, Judgement of 9 April 1949 (Merits), supra note Error:

Reference source not found, pp. 4 and 22; ICJ, Case Concerning Military and Paramilitary Activities in and

362

constitutional core782. Also, the Martens Clause of 1899, which set out the guidelines

for dealing with issues that had not been provided for in humanitarian law - usages

established among civilized peoples, dictates of public conscience and laws of hu-

manity - surely has to be regarded as part of a constitutional core in humanitarian

law783. Furthermore, the prohibitions against genocide and crimes against humanity,

laid down in Article 5 of the Rome Statute of the International Criminal Court, should

belong to such a constitutional catalogue. Regarded in the light of constitutionalism,

all these principles impose certain duties on all States and on the international com-

munity: they may not be set aside as a matter of State interest.

The most important principles of international humanitarian law - for example,

the prohibitions against genocide and crimes against humanity - are considered to be

jus cogens (peremptory norms) that are of such importance to the international com-

munity that they are binding under all circumstances, and therefore take precedence

over all other provisions of international law. Very few norms of international law were

regarded as peremptory until fairly recently: the principles of humanitarian law consti -

tute the greater part of jus cogens. Furthermore, the erga omnes effect784 of the fun-

Against Nicaragua, Judgment of 27 June 1986 (Merits), supra note Error: Reference source not found, pp. 14

et seq. and 113 et seq.; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July

1996, supra note Error: Reference source not found, para. 86; ICJ, Legal Consequences of the Construction

of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, supra note Error: Refer-

ence source not found, paras 89 et seq.

782 See also, D. Thürer, “Dunant’s pyramid: Thoughts on the ‘humanitarian space’”, International Review of the

Red Cross, Vol. 89, No. 865 (2007), pp. 56 et seq.

783 See, e.g., T. Meron, "The Martens Clause, Principles of Humanity and Dictates of Public Conscience”,

American Journal of International Law, Vol. 94 (2000), pp. 78 et seq.

784 See, e.g., J. Delbrück, “Laws in the Public Interest: Some Observations on the Foundations and Identifica-

tion of erga omnes Norms in International Law,” in V. Götz, P. Selmer and R. Wolfrum, Liber amicorum

363

damental principles of humanitarian law and the absolute nature of the basic rules -

in the sense that they are subject to no restrictions and that States cannot derogate

from them (for example, see Article 10, para. 5 of the First Geneva Convention) - can

be identified as constitutional elements on the international level785.

In dealing with international humanitarian law, as with all law, a positivist ap-

proach is generally chosen. Nevertheless, in tackling unsolved legal problems786,

constitutionalism, as a method of construction or interpretation, makes it possible to

widen the range of reference, to exploit unwritten basic principles and values of hu-

manity and ideas like public conscience and global responsibility. One can see this at

work in the ICJ’s advisory opinion on the legality of the threat or use of nuclear

weapons (8 July 1996)787. The arguments of most of the judges in this instance were

predominantly “philosophical” in nature. They were guided by the spirit and purpose

of the fundamental principles of humanitarian law and the raison d’être of human

civilization788.

On that occasion, Judge Ranjeva of the International Court of Justice wrote:

“The moral requirements are not direct and positive sources of prescriptions or oblig-

ations but they do represent a framework for the scrutiny and questioning of the tech-Günther Jaenicke – zum 85. Geburtstag, Berlin/New York, Springer, 1998, pp. 17 et seq.

785 See, e.g., M. Allen, supra note Error: Reference source not found, pp. 341 et seq.; A. Verdross, “Jus Dispos-

itivum and Jus Cogens in International Law”, American Journal of International Law, Vol. 60 (1996), pp. 55

et seq.

786 See e.g. Delbrück, supra note Error: Reference source not found, pp. 17 et seq.; T. Meron, op. cit., supra

note Error: Reference source not found, pp. 78 et seq.

787 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found.

788 See, e.g., Thürer, supra note Error: Reference source not found, p. 51.

364

niques and rules of conventional and consensual engineering. On the great issues of

mankind the requirements of positive law and of ethics make common cause, and

nuclear weapons, because of their destructive effects, are one such issue.”789 Judge

Weeramantry made references to the philosophical ideas of John Rawls and H.L.A.

Hart, about social and legal systems: “Such philosophical insights are of cardinal

value in deciding upon the question whether the illegality of use would constitute a

minimum component of a system of international law based on rationality or fairness.

By either test, widely accepted in the literature of modern jurisprudence, the rule of

international law applicable to nuclear weapons would be that their use would be im-

permissible. (…) The humanitarian principles discussed above have long passed the

stage of being merely philosophical aspirations. They are the living law and represent

the high-water mark of legal achievement in the difficult task of imposing some re-

straints on the brutalities of unbridled war. They provide the ground-rules for military

action today and have been forged by the community of nations under the impact of

the sufferings of untold millions in two global cataclysms and many smaller wars. As

with all legal principles, they govern without distinction all nations great and small.”790

The foregoing demonstrates the usefulness of constitutionalism as a method

of interpretation and construction in humanitarian law and its contributions to the law,

as a system based on an approach that focuses on the individual human being: this

is borne out by the examples of structural, substantial and hierarchical constitutional

789 Separate Opinion of Judge Ranjeva to the ICJ’s Advisory Opinion Legality of the Threat or Use of Nuclear

Weapons of 8 July 1996, ICJ Reports 1996, pp. 296 et seq.

790 Dissenting Opinion of Judge Weeramantry on the ICJ’s Advisory Opinion “Legality of the Threat or Use of

Nuclear Weapons” of 8 July 1996, supra note Error: Reference source not found, pp. 494 and 523.

365

developments in international humanitarian law, and also, especially, by the preced-

ent set by the advisory opinion of the ICJ791.

Relevance of the constitutional paradigm for international humanitarian law

To sum up, a number of distinctly constitutionalist tendencies can be dis-

cerned in various areas of international humanitarian law. I share the opinion that the

constitutional method of interpretation might, in some respects, lead to a better un-

derstanding, ranking and ordering of structures of the international legal order. It

would be helpful to define constitutionalism’s basic ideas, essential goals and long-

term perspective and to see it in profile, as it were, and to evaluate its methods. I

even put forward the thesis that international humanitarian law forms one part of the

“core” of such a constitutional order, as a French oberserver said in a discussion.

This might sound strange at first sight since, humanitarian law applies only in

“phases passagères”, as “aide à travers une période critique particulière”, as a

guideline for a “équipe humanitaire et étranger de passage”. The law is designed to

function before, during and after armed conflict. My thesis, however, is that, in ex-

tremis, the irreducible essence of the law is revealed792.

Finally, constitutionalization is an idea in flux in the contemporary debate

about international law. It has to be, and will be, further elaborated in the near future.

791 See, e.g., Ch. Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Cen-

tury”, Recueil des cours, Vol. 281 (1999), p. 10; T. Meron, op. cit, supra note Error: Reference source not

found, pp. 239 et seq.

792 Cf. D. Thürer, “International Humanitarian Law as a Core of a Minimal World Constitutional Order?“ in

ibid., Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit- Band 2 , Zurich/Baden-Baden,

Dike/Nomos, 2009.

366

The reflections in this chapter are an attempt to contribute to the discussion; they are

by no means conclusive.

IV. The destructive potential of technology

Up to this point, this book has been wafted along by “une passion du droit” 793:

What we seek is the rule of law – and not just rule by laws. Indeed, the role of law

and of institutions should not be underestimated. Just and stable institutions play a

central role in stabilizing political life internally as well as internationally. I have tried

to demonstrate throughout how important the law is for constraining war, potentially

and in actuality, and what remarkable progress has been made in establishing a legal

framework for decisions concerning war and peace.

In a lecture at The Hague Academy in 1974, René Cassin distinguished

between the period of the League of Nations and that of the United Nations: one, he

said, was marked by the creation of a system of collective security and the other by

the development of human rights. It may be that we are now witnessing the begin-

ning of yet another era. Perhaps we have entered an age menaced by dangers

posed by technological advances, something that cannot be dealt with by traditional

legal means. Scientific progress does, of course, benefit society. But a darker con-

sequence of advances in science is that we will soon be able, by error or terror, to

destroy mankind, the planet itself. This risk is not new; after all, the doctrine of ‘mutu-

ally assured destruction’ was an aspect of the madness of the Cold War. But during

the Cold War only governments – and only very few governments – had access to

these weapons of doom. Now, groups like al Quaeda or an unhinged individual in

isolation (for instance, the anthrax case in the United States) might be able to gain

access to weapons of mass destruction, which might render traditional systems of 793 J. Carbonnier, Droit et passion du droit sous la Ve République, Paris, Flammarion, 1996.

367

control futile. “Humanity is more at risk than at any earlier phase in its history”794: this

was the conclusion reached by Martin Rees, the distinguished British astrophysicist.

But we are not prepared. Consciously or unconsciously, we ignore the most serious

existential threats.

I have been talking about war and peace and an end to arms proliferation. I

have also referred to law as a fairly effective “wall” against violence. But given the

new globalized threat, perhaps this way of thinking has become obsolete? Perhaps

law is powerless against new threats of the kind I have mentioned? Do we need a

new public and professional ethic? Of scientific self-restraint? Or of collective re-

sponsibility?

Law has its limits. Everyone would agree to the truthfulness of this in daily life:

for instance, civil law can and should deal only with a limited area of human interac-

tion. The same is true at the international level. Imposing rules is not enough. These

rules should grow and have the support of civil society, from the bottom upwards. We

should remember that “humanitarianism” was one of the three major demands of the

Age of Enlightenment. The others were “education” and “liberal democracy”795. To put

it simply, people have to become aware of their responsibilities and think accordingly:

this may seem idealistic, but, alas, it is a necessity. Legal principles must be internal-

ized; they must have a bearing on the way decision-makers think and act; they have

794 M. Rees, Our Final Century: Will the Human Race Survive the Twenty-First Century?, London, Heinemann,

2003, p. 188. Martin Rees has written: “I don’t feel the least humble before the vastness of the heavens. The

stars may be large, but they cannot think or love; and these are qualities which impress me far more than size

does […]. My picture of the world is drawn in perspective, and not like a world drawn to scale. The fore -

ground is occupied by human beings, and the stars are all as small as threepenny bits.”

795 J.-Ch. Rufin, L’aventure humanitaire, Paris, Gallimard, 1994, p. 127.

368

to influence the spirit that guides public opinion. But are these legal principles suffi-

ciently heeded? The ethos we live in seems to me characterized by ennui, by ignor-

ance, by our habit of pushing uncomfortable truths into a remote corner of our public

consciousness.

369

Outlook: Practical means and legal ideals

“I know that I shall meet my fate

Somewhere among the clouds above;

Those that I fight I do not hate,

Those that I guard I do not love;

My country is Kiltartan Cross,

My countrymen Kiltartan’s poor;

No likely end could bring them loss

Or leave them happier than before.”

- W. B. Yeats796

Time does not stand still: many problems remain to be solved. We cannot

foresee the direction that social forces might take or the laws that will be needed as a

result; and we have no blueprint for a new order. But we hope to be able to contribute

to the stabilization of the existing “minimum public order” while aspiring towards a

better, “optimum public order”797. It may be in order to reflect on two subjects in par-

ticular before rounding off our survey. First, implementation: having made passing

references to this on several occasions, I would like to take up the subject anew and

put the various pieces together. The second point is a ceterum censeo: one of the

biggest and still unfinished tasks for the international community concerns the law

governing disarmament and arms control, which has no traditionally assigned place

in any specific body of international law, but for which place could most plausibly be

found in humanitarian law (and its penumbra). It seems important to me to transfer

these questions from processes of pure bargaining into the value-system of interna-

796 W.B. Yeats, “An Irish Airman Foresees his Death”, in The War Poets: An Anthology, Hampshire, Pitkin

Publishing, 1992, p. 140.

797 M.S. McDougal and F.P. Feliciano, The International Law of War: Transnational Coercion and World Pub-

lic Order, New Haven, New Haven Press, 1994, p. xxvii.

370

tional humanitarian law. This would give aim and direction to negotiations and make

them more transparent and evaluable. In this area, the effective banning of nuclear

weapons is a fundamental challenge, not just for international lawyers but also for all

of humanity.

I. Implementation

A lawyer trained in domestic law thinks of the legal process as a “three-step

model”: legislation, application (by administrative authorities and – in cases of dispute

– by courts), and enforcement (by the police and other pertinent authorities exer-

cising constraint and, ultima ratio, by using military means). But the usefulness of

analogies with domestic law is, in the international sphere, limited. The procedures

and mechanisms best suited to implement law in the international sphere are gener-

ally quite different from those in the domestic sphere. And – although the way States

and other international actors, in general, habitually798 observe the law is similar to

the way citizens within a State conduct themselves – there are large differences in

798 T.M. Franck, “The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of

Power Disequilibrium”, in A Century of International Law: American Journal of International Law Centen-

nial Essays 1906-2006, Washington, D.C., American Society of International Law, 2007, pp. 88 et seq.: “The

real power of law to secure systematic compliance does not rest, primarily, on police enforcement – not even

in police states, surely not in ordinary societies, and especially not in the society of nations – but, rather, on

the general belief of those to whom the law is addressed that they have a stake in the rule of law itself: that

law is binding because it is the law. That, of course, is a fragile psychological belief, one, moreover, that is

unverifiable. While, in every community, it constitutes an essential social construct, it is easily deconstructed.

If one were able to ask the bumblebee, with its aerodynamically unviable body-to-wing ratio, how it manages

to fly, it might well fall to the ground” (p. 91); L. Henkin, International Law: Politics and Values,

Dordrecht/Boston/London, Martinus Nijhoff, 1995, p. 48: "In general and overall, however, States are law-

abiding and the international system is orderly.”

371

the methods, style and culture of legal processes. In addition, terminology is different:

Talk of “legislation”, “application” and “enforcement” may sound odd in connection

with international law; after all, there is no world parliament or administrative ma-

chinery, no comprehensive and compulsory judiciary system is available – but a few

tribunals with specific responsibilities are – to adjudicate international disputes, and

there is no police force to enforce international law. I suggest that “compliance”799

might be more appositely used as an umbrella term to denote the various processes

concerning the observance and implementation of the law in the area of international

relations. I shall now try to identify and illustrate ways and means to ensure compli-

ance with international humanitarian law, first on the international plane, then in the

domestic sphere, and finally in those gradually emerging fields where international

and domestic law overlap and procedures are mixed. Of course, my treatment of the

subject cannot be exhaustive.

a) On the international level, various mechanisms have been established that

are especially designed to implement international humanitarian law or to fulfill such

tasks as by-products of other functions entrusted to them. On the whole, the system

does not work as well as one might want it to. In general, international institutions –

tribunals, parliamentary organs, monitoring committees, etc. – have failed to discover

or realize their potential for strengthening humanitarian law. Institutions specifically

established to implement international humanitarian law, such as the “Protective

799 L. Henkin, op. cit., supra note Error: Reference source not found, p. 45: “[States] bind themselves to observe

the law; compliance is not voluntary; compliance will not be coerced. States are induced, not coerced, to

comply. A State’s consent to be bound by law, moreover, generally does not imply consent to submit to spe -

cial means for monitoring its compliance or to judicial determination as to whether it has complied.”

372

Powers” under the Geneva Conventions800 or fact-finding mechanisms801, are largely

obsolete or underused. One suggestion might be the creation of new control mech-

anisms the seizure of which would not depend on the consent of the authorities con-

cerned; and those in charge of the process should have the power to make decisions

that are binding (and not only recommendations).802 Another proposal might be to

give victims some rights: for example, the right to know the truth about violations, the

right of effective appeal803 and a right to reparation. In addition, the erga omnes prin-

ciple laid down in common Article 1 of the Geneva Conventions and Article 1 of Addi-

tional Protocol I should be used more effectively. This basic provision of international

humanitarian law reaffirms that all parties are obliged to respect and to ensure re-

spect for the fundamental principles of humanitarian law and the obligations under

treaty law in all circumstances. In this context, “respect” means that the State is un-

der an obligation to ensure that the rules in question are respected by its organs as

well as by all others under its jurisdiction. “Ensuring respect” means that States,

whether engaged in a conflict or not, must take all possible steps to make certain that

the rules are respected by all, in particular by parties to the conflict in question. In ad-

800 The four Geneva Conventions of 1949, Arts 8, 8, 8 and 9.

801 Additional Protocol I of 1977 to the Geneva Conventions, Art. 90.

802 Cf. Y. Sandoz (ed.), Quel droit international pour le 21e siècle?, Buxelles, Bruylant, 2007, pp. 35-40.

803 For a corresponding provision in human rights law, see, e.g., Article 2 (3) of the International Covenant on

Civil and Political Rights, according to which each party undertakes:

“(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an ef -

fective remedy, not withstanding that the violation has been committed by persons acting in an official capa -

city.

b) To ensure that any person claiming such remedy shall have his right thereto determined by competent

judicial, administrative or legislative authorities, or by any other competent authority provided for by the

legal system of the State, and to develop the possibilities of judicial remedy;

c) To ensure that the competent authorities shall enforce such remedies when granted.”

373

dition, States should, politically speaking, consider it to be within their national in-

terest to observe and promote the principles of international humanitarian law804.

b) States bear the primary responsibility for ensuring respect for international

humanitarian law, not only on the international level, but also internally. As lawyers,

we think first of the duty of States to incorporate the norms of humanitarian law

norms in their domestic legal systems. A key requisite for the effective implementa-

tion of international humanitarian law is to make sure that domestic legal systems

contain norms and procedures for punishing those who commit grave breaches of

the law: to prosecute alleged perpetrators or to bring them before their courts or to

extradite them (aut dedere aut judicare). Another duty that must be anchored in do-

mestic law is protecting the emblems of humanitarian organizations, such as the Red

Cross, the Red Crescent and the Red Crystal. States must also organize and co-

ordinate their internal political and administrative structures so as to give maximum

effect to the imperatives of international humanitarian law. Specific ICRC advisory

services – for creating model laws to induce and encourage compliance, for instance

– provide valuable assistance. The most important means of inducing lasting compli-

ance with humanitarian law may be to spread knowledge of the law, to encourage

commitment to it in all sections of society (first of all, among those who are prepared

to resort to violence), and to train the armed forces and the police. The resistance of

804 See A. Brysk, Global Good Samaritans: Human Rights as Foreign Policy, Oxford, Oxford University Press,

2009. The author, who is concerned with developing a “cosmopolitan political culture”, writes: “Like other

states, global Good Citizens are following their national interests; the difference is that they have a broader,

longer-term vision of national interest. Global good citizens have reconstructed their national identity in ac-

cordance with universalist norms, roles and expectations. Thus they have learned to see themselves as inter-

connected members of a global community that works best for everyone when human rights are respected”

(p. 31).

374

governments or authoritarian figures that tolerate brutality will have to be overcome.

The most effective means to ensure compliance seem to be those directed towards

significant actors such as the armed forces and the police, with the intention of mak-

ing them respect human values, uphold or restore public order, and provide protec-

tion to individual human beings. These individuals must be brought to personally

firmly believe in these basic standards, and the rules must be backed by disciplinary

punishment (in case of non-observance) and peers’ expectations. The follwing pas-

sage taken from a down-to-earth field conservation might well be illuminating:

“’You think their discipline is poor,” I said. ‘You are wrong. Their discipline is very

good. What holds them back from exterminating every male child, every last one of

you, is not compassion or fellow-feeling. It is discipline, nothing else: orders from

above that can change every day. Compassion is flown out of the window. This is

war’.”805

There is another factor that stimulates and shapes behaviour in situations of armed

conflicts and violence:

“Combatants asked about their motivation in combat rarely cite an ideal, or hatred, or

decorations. What they talk about is concern not to let their comrades down and not

to lose the latters’ respect and support. The influence of peers is decisive for the be-

haviour of bearers of weapons. The other central influence relates to position in the

hierarchy, to orders (or lack of orders) and to the penalties which offenders are li-

able.”806

c) One of the distinctive characteristics of the modern legal order is the in-

creasing difficulty, in many cases the impossibility, of neatly separating international

and domestic legal principles and rules, as well as modes of action. Dividing lines

have blurred and new forms of interaction – between domestic and international law -

805 Quoted in J.-J. Frésard, The Roots of Behaviour in War: A Survey of the Literature , Geneva, ICRC, 2004,

quoting J.M. Coetzee, Age of Iron, p. 5.

806 J.-J. Frésard, op. cit., supra note Error: Reference source not found, pp. 9 et seq.

375

emerge and rapidly intensify. Common spheres of interprenetration where no dividing

lines exist between international and internal legal systems are emerging but have

not yet penetrated legal imagination sufficiently. This is also the case in international

humanitarian law.

Compliance with international humanitarian law can also be brought about by

mixed procedures, i.e. through the interplay of international mechanisms and do-

mestic legal systems. A case in point is the events that followed the “Gaza War” that

took place during the winter of 2008-2009. The legal aftermath of the war represents

probably the most far-reaching interaction to date, between several UN organs and

agencies, global civil society, the legal systems of the warring parities and, poten-

tially, the International Criminal Court. I will limit myself to a brief description807.

International reaction to the outbreak of war was prompt and manifold. The UN Security

Council, the UN Secretary-General, the High Commissioner for Human Rights and the

Special Rapporteur on the situation of human rights in the Palestinian territories all re-

ferred directly or indirectly to the importance of international humanitarian law and ex-

pressed their concern about protection for civilians. Some UN organs and agencies as

well as civil society organizations called for an independent inquiry into alleged war

crimes and individual accountability. The government of Palestine, driven to despera-

tion, put its trust in the international community and declared that it recognized the juris-

diction of the International Criminal Court for the purpose of identifying, prosecuting and

judging all those complicit in the crimes that had been committed.

The UN Human Rights Council established a “UN Fact-Finding Mission on the Gaza

Conflict” with the mandate “to investigate all violations of international human rights law

and international humanitarian law that might have been committed at any time in the

context of the military operations that were conducted in Gaza”. The Mission’s final re-

807 For more details, see D. Thürer, See, e.g., D. Thürer, „Vom Kampf der Bilder und dem Bild des Krieges“, in

ibid., Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2, Zurich/Baden-Baden,

Dike/Nomos, 2009, pp. 279 et seq..

376

port, the so-called “Goldstone report”808, unambiguously condemned the violation of

fundamental principles of humanitarian law and human rights law that had been com-

mitted both by Israel and Hamas. In particular, it accused Israel, and to a lesser extent

Hamas, of war crimes. The Mission also tackled the question of accountability. Instead

of calling for the perpetrators to be tried immediately before an international court, it re-

commended that the parties to the conflict carry out their own investigations and,

should those fail to yield results, that the case be referred to the International Criminal

Court.

At the time of writing, neither Israel nor Hamas had carried out independent

inquiries. Should the Security Council decide, in the absence of good-faith investiga-

tions by both parties to the conflict, to refer the situation to the Prosecutor of the ICC,

arrest warrants for politicians and military personnel could be issued by the Court. As

a result, Israel and the Hamas are under considerable international pressure to com-

ply with the recommendations of the Goldstone report: commence serious inquiries

into alleged violations of humanitarian law and human rights law and prosecute war

criminals.

In Israel, the Goldstone report – though, in general, strongly rejected – was widely dis-

cussed by the authorities and the public. Although extremely reluctant to do so at first,

high-ranking Israeli officials have come around to supporting the idea of an independ-

ent commission of inquiry. They are of the view that the Goldstone report requires a

credible Israeli response. Otherwise, they fear, the US cannot be persuaded to veto the

possible forwarding of the Report to the ICC. Under international pressure, Israel car-

ried out numerous internal, but not independent, investigations into alleged violations of

humanitarian law. Recently, a military tribunal found two senior Israeli officers guilty of

having exceeded their powers, thus confirming one of the charges made by the Gold-

stone report.

808 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc. A/

HRC/12/48.

377

On the whole, Israel’s efforts to make war criminals accountable for violations of inter-

national humanitarian law have certainly been half-hearted. But some progress has

been made. As the conviction of the Israeli officers shows, certain untenable positions

have had to be given up under international pressure and the threat of international

criminal proceedings. The Goldstone report is obviously beginning to have an impact.

This illustrates that the findings of international investigation reports are having an ef-

fect on national legal proceedings. The legal aftermath of the Gaza War is highly illus-

trative of the interplay of international and domestic national mechanisms for ensuring

compliance with international humanitarian law. At the time of writing, the Goldstone re-

port had not yet produced the desired results. However, there is reason to hope that in

the future, international and domestic mechanisms will work together more effectively,

which can only contribute to better compliance with international humanitarian law.

Many other means and methods of implementing international humanitarian

law might be mentioned, legal and non-legal, preventive and repressive. The Gaza-

Case was especially interesting because of its implications for the future. But let us

conclude these general remarks by reminding the reader of the primary importance

of the role of States. Much depends on the way they act within their own legal sys-

tems: engaged or not, effectively or not.

II. Law as a Myth: Nuclear Weapons

The bans on certain types of weapons of mass destruction such as chemical

and biological weapons are among the greatest achievements of modern interna-

tional law809. Other weapons have been banned such as anti-personnel mines and

cluster munitions whose use is contrary to the principles of international humanitarian

law. But let it be repeated: one particularly serious gap in the law is the absence of

an international treaty banning nuclear weapons. In an advisory opinion issued in

809 See D. Thürer and M. MacLaren, „Might the Future of the ABC Weapons Control Regime lie in a Return to

Humanitarism?“ in D. Thürer, Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit – Band 2 ,

Zurich/Baden-Baden, Dike/Nomos, 2009, pp. 803 et seq. See supra, Chapter Two.

378

1996, the International Court of Justice expressed the view that the threat or use of

nuclear weapons was contrary to the fundamental principles of international humanit-

arian law. However, the Court also held that in view of the (then) present state of in-

ternational law, taken as a whole, and of the element of facts at its disposal, it could

not reach a definitive conclusion on the legality of the use of nuclear weapons by a

State in the extreme case that it was compelled to do so because “its very survival

was at stake”810 exceptional circumstances with regard to the legality of the use by a

State in an extreme circumstance of self-defence, in which its very survival would be

at stake811. The opinion did, thus, not establish the definite illegality or legality of the

use of nuclear weapons812. It is all the more significant that when President Barack

Obama of the United States set out his vision for US security policy in Prague on 5

April 2009813, he called for a "world without nuclear weapons". He acknowledged that

a revival of the non-proliferation regime requires a credible willingness to disarm on

810 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Error:

Reference source not found, para 97.

811 See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, supra note Er-

ror: Reference source not found, paras 90 et seq.

812 Laymen often see things more simply and clearly than lawyers, who are tangled up in precedents, profes-

sional dogma and power politics. It is striking that Albert Schweitzer made international law central to his

struggle to have nuclear weapons banned. He pointed out that the atomic bomb was a new weapon that ut -

terly defeated international law: "Instead of fighting with the enemy and defending oneself as one previously

did, war will now amount to blind slaughter inflicted from afar, using weapons that exterminate soldiers and

civilians alike." (See Friedrich Schorlemmer, Genie der Menschlichkeit: Albert Schweitzer, Berlin, Aufbau-

Verlag, 2009, p. 207). International law was crucial for Schweitzer because it was possible for people to

agree on arguments derived from it, irrespective of religion, political opinion and ethnic origin, and because

these arguments had to convince individuals, political parties and governments (see ibid., p. 218). On

Schweitzers' campaign against "the bomb", see also N.O. Oermann, Albert Schweitzer (1875-1965) – Eine

Biographie, Munich, Beck Verlag, 2009, pp. 253 et seq.

379

the part of the nuclear powers, and indicated that the United States was willing to

commit to this as a long-term goal (though "perhaps not in my lifetime“). He also

made it plain that anyone who doubted his vision was ultimately accepting the prolif-

eration of nuclear weapons and the likelihood that they would one day be used.

While acknowledging the obstacles, he made it clear that the alternatives were

threats of war in the future and an end to human progress.

In September 2009 the UN Security Council held its first summit-level meet-

ing on nuclear weapons; it was chaired by President Obama. In Resolution 1887, the

Council unanimously pledged “to create the conditions for a world without nuclear

weapons“ through concrete actions in the field of nuclear non-proliferation and nuc-

lear disarmament. During the debate on nuclear issues in the First Committee of the

UN General Assembly, delegates praised the United States for changing its position

and welcomed the Security Council’s resolution on non-proliferation and disarma-

ment.

The creation of "nuclear weapons-free zones“ – geographical zones in which

no nuclear weapons such as bombs or warheads are kept – is another step in the

same direction. Such zones are set up by means of international treaties814 and polit-

ical arrangements815. They have already been established in Antarctica, Latin Amer-

ica, the South Pacific, South- East Asia, Africa, Central Asia and parts of Germany816.

813 Available at <http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-

Prague-As-Delivered/>, accessed August 2010.

814 The Tlatelolco Treaty (1967), the Rarotonga Treaty, the Bangkok Treaty (1995), and the Pelindaba Treaty

(1996).

815 For details, see A.A.C. Trindade, op. cit., supra note Error: Reference source not found.

380

The most pressing problem at present is that some nuclear powers are not

bound by disarmament or arms control treaties. Pakistan, India, Israel and North

Korea have nuclear weapons but are not party to the Treaty on the Non-Proliferation

of Nuclear Weapons817. Some of these countries are politically unstable while for oth-

ers the potential for conflict with their neighbors is very high: because of this, all

these countries regard the possession of nuclear weapons as something akin to a

life-insurance policy. Long-term international cooperation, particularly between the

two major nuclear powers, Russia and the United States, is the decisive factor: it will

determine whether we can progress towards the goal of a world without nuclear

weapons818. Therefore, we should not see Obama's statement in Prague, in which he

set out his vision of a world free of nuclear weapons, as wistful speculation. One of

the reasons given by the Nobel Committee for awarding him the Nobel Peace Prize

in 2009 was precisely that: his vision of a world without nuclear weapons and the

boost it gave to worldwide disarmament efforts and cooperation in the area of arms

limitation819.

Since the bombing of Hiroshima and Nagasaki in 1945, the existence of nuc-

lear weapons has weighed heavily on the conscience of mankind. The dropping of

those bombs revealed man's limitless capacity to cause death, suffering and destruc-

816 A list of disarmament and arms control treaties can be found at <http://disarmament2.un.org/TreatyS-

tatus.nsf>, accessed August 2010.

817 The Treaty on the Non-Proliferation of Nuclear Weapons can be found at <http://www.iaea.org/

Publications/Documents/infcircs/Others/infcirc140.pdf>, accessed August 2010.

818 See F. Tanner, "'Obama-Faktor' erzeugt Renaissance der Abrüstung", Neue Zürcher Zeitung, 5 July 2009, p.

15.

819 This can be found at <http://nobelprize.org/nobel_prizes/peace/laureates/2009/press.html>, accessed August

2010.

381

tion using methods that preclude any distinction between civilians and members of

the armed forces. And yet, in discussions about the legality of such weapons820, such

ideas as “policy of deterrence”, “strategic wars” and “military superiority” are still be-

ing advanced, as if they were anything other than morally disreputable, and the fact

of human suffering is treated as if it were an abstract issue. Nuclear weapons must

play no part in national security strategies or as instruments of geopolitical power821:

the importance of this cannot be stressed enough. The International Committee of

the Red Cross can play an important role here: it has, from the outset, questioned the

legality of weapons of mass destruction822. Because of its exclusively humanitarian

mandate, it conducts itself differently from international organizations whose mem-

bers are States. The issue of nuclear weapons is proving to be a catalyst in challen-

ging orthodox opinion on the sources of international law. Hitherto, the conventional

view has been that international law is derived from treaty law and customary law,

hence from the will of States. However, a system of international law for which – ow-

820 See, in particular, the ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July

1996, supra note Error: Reference source not found, paras 90 et seq. According to the Court, the use of nuc-

lear weapons in armed conflict is governed by international humanitarian law. Therefore, in principle, their

use is to be ruled out in any conceivable situation of conflict – because of the impossibility, for such

weapons, of distinguishing between civilian objects and military targets on the one hand and between civil-

ians and members of the armed forces on the other. However, the Court leaves open the question whether this

prohibition applies in an extreme circumstance of self-defence, in which the State’s very survival would be at

stake.

821 See the debates of the Institute of International Law during its Edinburgh session, at which all weapons of

mass destruction were condemned: Annuaire de l’Institut de droit international 1969 II, pp. 49-50, 53, 55,

60, 62-64, 66, 88-90 and 99.

822 See M. Huber, “La fin des hostilités et les tâches futures de la Croix-Rouge”, International Review of the

Red Cross, No. 321 (1945), pp. 657 et seq.; and L. Bossier and P. Ruegger, “Atomic Weapons and Non-Dir-

ected Missiles”, International Review of the Red Cross, Supplement, Vol. 3, No. 4 (1950), pp. 70 et seq.

382

ing to its roots in the will of States, according to the positivist view – the illegality of

weapons of mass destruction is not an unambiguous and basic premise, is one that

rests uneasily on shaky foundations. Therefore, it must be possible to base regimes

concerning nuclear weapons on ideas like “values and interests of mankind", the

“universal human conscience”, and the demands of “comprehensive global justice”,

not only as metalegal concepts, but also as an integral part of the law823. By analogy

with domestic law, we could speak here of an "international public order". Negoti-

ations should base themselves in international humanitarian law: they should pro-

ceed from the assumption that the use of nuclear arms is already illicit under existing

international law, and that any new treaty norms would only be a reiteration of this

fact and would only be clarifying existing law. By doing so the vision of a “nuclearfree

world” would be included into a comprehensive treaty which would also contain provi-

sions of related judicial subjects (such as non-proliferation) and would rest on the

conviction that negotiating a ban on the use of nuclear weapons was a settled matter,

an imperative, and not something to be haggled over by those seated at conference

tables.

***

How shall I conclude? Perhaps by reminding the reader that much has been

achieved in international humanitarian law and that not everything can be regulated?

Much depends on individual decision-makers, on their impulses and on their intuition.

This is expressed in the epigraph to this chapter is taken from a famous English

poem in which an airman reflects on the futility of war. Put on the macro political level 823 See the pioneering work of A.A.C. Trindade, op. cit, supra note Error: Reference source not found, pp. 37 et

seq.; C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 57 et seq., 66 et seq., 169 et

seq..; R.-J. Dupuy, L’humanité dans l’imaginaire des nations, Paris, Julliard, 1991.

383

of world order in an address to the Pugwash Conference in 2000, Amartya Sen, the

distinguished Indian economist, reflected on the confluence of nationalism and nuc-

lear weapons. His opening sentences were: “Weapons of mass destruction have a

peculiar fascination. They can generate a warm glow of strength and power carefully

divorced from the brutality and genocide on which the potency of the weapons de-

pends.” Furthermore, he quoted the reaction of the leading architect of India’s bal-

listic missile programme, a key figure in the development of the country’s nuclear ar-

senal, to the nuclear tests in Pokhran in India in 1998: “I heard the earth thundering

below our feet and rising ahead of us in terror. It was a beautiful sight.”824

Even when one is talking about humanitarian law and its implementation, hu-

man beings, singly and collectively - and their thoughts, feelings and actions - remain

central. Marcel Mauss concluded his immensely influential book, The Gift, with these

words:

“We touch upon fundamentals. No longer are we talking in legal terms: we are speak-

ing of men and groups of men, because it is they, it is society, it is the feelings of

men, in their minds and in flesh and blood that at all times spring into action and that

have acted everywhere.” 825

In 1944, Judge Learned Hand had reflected along similar lines:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon

laws and upon courts. These are false hopes; believe me, these are false hopes.

Liberty lies in the heart of men and women; when it dies there, no constitution, no

law, no court can save it.”826

824 A. Sen, The Argumentative Indian: Writings on Indian Culture, History and Identity, London, Allen Lane,

2005, p. 253.

825 M. Mauss, The Gift, London/New York, W.W. Norton and Co, 2000, p. 89 (Essai sur le don, first published

in 1950 by Presses Universitaires de France).

826 L. Hand, The Spirit of Liberty, New York, Alfred A. Knopf, 1974, pp. 189 et seq.

384

385

Appendix

Conventions relating to IHL

Victims of Armed Conflict

- Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April

1863.

- Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22

August 1864

- Additional Articles relating to the Condition of the Wounded in War. Geneva, 20 October 1868.

- Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes

Weight. Saint Petersburg, 29 November / 11 December 1868.

- Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations

concerning the Laws and Customs of War on Land. The Hague, 29 July 1899

- Convention for the Exemption of Hospital Ships, in Time of War, from The Payment of all Dues and

Taxes Imposed for the Benefit of the State. The Hague, 21 December 1904.

- Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.

Geneva, 6 July 1906

- Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations con-

cerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

- Convention (XI) relative to certain Restrictions with regard to the Exercise of the Right of Capture in

Naval War. The Hague, 18 October 1907

- Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriolo-

gical Methods of Warfare. Geneva, 17 June 1925.

- Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.

Geneva, 27 July 1929

- Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929

- First draft Convention adopted in Monaco (Sanitary cities and localities), 27 July 1934

- Draft International Convention on the Condition and Protection of Civilians of enemy nationality who

are on territory belonging to or occupied by a belligerent. Tokyo, 1934.

386

- Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field. Geneva, 12 August 1949.

- Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea. Geneva, 12 August 1949.

- Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

- Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August

1949.

- Human Rights in Armed Conflicts. Resolution XXIII adopted by the International Conference on Hu-

man Rights. Teheran, 12 May 1968

- Respect for Human Rights in Armed Conflicts. Resolution 2444 (XXIII) of the United Nations General

Assembly, 19 December 1968.

- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of International Armed Conflicts. Geneva, 8 june 1977.

- Declaration provided for under article 90 AP I. Acceptance of the Competence of the International

Fact-Finding Commission according to article 90 of AP I.

- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of Non-International Armed Conflicts. Geneva, 8 June 1977.

- Convention on the Rights of the Child, 20 November 1989.

- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in

armed conflict, 25 May 2000

- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an

Additional Distinctive Emblem (Protocol III), 8 December 2005.

- Convention on the Rights of the Child, New York, 20 November 1989.

- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in

armed conflict, New York, 25 May 2000.

Criminal repression

- Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,

and Charter of the International Military Tribunal. London, 8 August 1945.

- Affirmation of the Principles of International Law recognised by the Charter of the Nüremberg

Tribunal. Resolution 95 (I) of the United Nations General Assembly, 11 December 1946.

387

- Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Viola-

tions of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since

1991, 25 May 1993.

- Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Geno-

cide and Other Serious Violations of International Humanitarian Law Committed in the Territory of

Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the

territory of neighbouring States, between 1 January 1994 and 31 December 1994, 8 November 1994.

- Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002

Rome Statute of the International Criminal Court, 17 July 1998.

Protection of cultural property in the event of armed conflict

- Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May

1954.

- First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of

Armed Conflict, The Hague, 14 May 1954.

- Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event

of Armed Conflict, The Hague, 26 March 1999.

Environment

Convention on the prohibition of military or any other hostile use of environmental modification tech-

niques, New York, 10 December 1976.

Weapons

- Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Warfare,

Geneva, 17 June 1925.

- Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Bio-

logical) and Toxin Weapons and on their Destruction.

Opened for Signature at London, Moscow and Washington. 10 April 1972.

- Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may

be deemed to be Excessively Injurious

388

or to have Indiscriminate Effects. Geneva, 10 October 1980.

- CCW Prot. I 1980 Protocol on non-detectable fragments (I).

- CCW Prot. II 1980 Protocol on prohibitions or restrictions on the use of mines, booby-traps and other

devices (II).

- CCW Prot. III 1980 Protocol on prohibitions or restrictions on the use of incendiary weapons (III).

- CCW Prot. IV 1995 Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), 13

October 1995.

- CCW Prot. IIa 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and

Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention).

- Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional

Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (with

Protocols I, II and III), Geneva 21 December 2001.

- Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use

of Certain Conventional Weapons which may be deemed

to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II and III). Geneva, 28

November 2003.

- CWC 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on their Destruction, Paris 13 January 1993.

- Ottawa Treaty 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer

of Anti-Personnel Mines and on their Destruction, Oslo, 18 September 1997.

- Convention on Cluster Munitions, 30 May 2008

Naval and Airwarfare

- Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 Au-

gust 1864. The Hague, 29 July 1899.

- Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities. The Hague, 18

October 1907

- Convention (VII) relating to the Conversion of Merchant Ships into War-Ships. The Hague, 18 October 1907

- Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines. The Hague, 18 October 1907

- Convention (IX) concerning Bombardment by Naval Forces in Time of War. The Hague, 18 October 1907

389

- Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. The

Hague, 18 October 1907

- Convention (XI) relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval

War. The Hague, 18 October 1907

- Convention (XII) relative to the Creation of an International Prize Court. The Hague, 18 October 1907

- Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War. The Hague, 18 October

1907.

Miscellaneous

- Convention (III) relative to the Opening of Hostilities. The Hague, 18 October 1907.

- Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The

Hague, 18 October 1907.

- Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948.

- Convention on the prohibition of military or any hostile use of environmental modification techniques, 10

December 1976.

- Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977.

- International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December

1989.

390

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