CHAPTER - 2

INTERNATIONAL HUMANITARIAN LAW

2.1 Definition and Meaning

International Humanitarian Law is a branch of law of nations or

international law. That law governs relations between members of the
international community, namely states. International law is supranational
and its fundamental rules are binding on all states. Their goals are to
maintain peace, to protect human being in a just order, and to promote social
progress in order and to promote social progress in freedom.1

International Humanitarian Law is also called the law of armed conflict

and previously known as the law of war. International humanitarian law
seeks to mitigate the effects of war, first in that it limits the choice of means
and methods of conducting military operations and secondly in that it
obliges the belligerent to spare persons who do not or no longer participate
in hostile actions.

The expression ‘International Humanitarian Law’ applicable in armed

conflict means international rules established and developed by customs and
treaties, which are specifically intended to solve humanitarian problems
directly arising from international or non-international armed conflict to use

1 Hans Peter Gasser, Introduction to International Humanitarian Law,pp.l

the methods and means of warfare of their choice or protected persons and
property that are, or may be, affected by conflict”2 3

International Humanitarian Law (IHL), often referred to as the laws

of war, the laws and customs of war or the law of armed conflict, is the legal

corpus "comprised of the Geneva Conventions and the Hague Conventions,

as well as subsequent treaties, case law, and customary international law." It

defines the conduct and responsibilities of belligerent nations, neutral

nations and individuals engaged in warfare, in relation to each other and to

protected persons, usually meaning civilians.

International Humanitarian Law can be defined as “the human rights

component of the law of war” in other words, it is the branch of human
rights law which applies in international armed conflict and in certain
circumstances it applies even to international armed conflicts. The
international humanitarian law is much older than international human right
law.

Humanitarian law is that considerable portion of international law

which is inspired by the feeling for humanity and is centered on the
protection of the individual in time of war. The term ‘humanitarian law’
combines two ideas of different natures, one legal and the other moral, and
more specifically, of humanitarian concern4.

2 Commentary on the Additional Protocol of 8 June, 1977 to the Geneva Convention of 12 August,
1949, p.27
3 T. Buergenthal & H. Maier, Public Intematioinal Law, (1985), p.140.
4 P.K. Goel, Bullentin on IHL & Refugee Law, vol.l, no.2, July- Dec, 1996. p.194.
2.2 International Humanitarian Law and U.N. Charter

War is forbidden. The Charter of the United Nations states clearly

that the threat or use of force against other States is unlawful.5 Since 1945,

war has no longer been an acceptable way to settle differences between

States. So why talk about international rules dealing with armed conflicts (or
war) and their effects, if the Charter has banned recourse to force in
international relations? There are four answers of a legal nature to that
question.

First, the Charter has not completely outlawed the use of force.
Indeed, States retain the right to defend themselves, individually or
collectively, against attacks on their independence or their territory, in
response to a (legal or illegal) use of force. Second, the Charter's prohibition
of the use of force does not encompass internal armed conflicts (or civil
wars). Third, Chapter VII of the Charter allows member States the use of
force in collective action to maintain or restore international peace and
security. Fourth, wars do in fact occur, as we all know, despite their being
outlawed by the Charter of the United Nations. Armed conflicts short of war
are a sad reality in our contemporary world.

2.3 International Humanitarian Law and International

Human Rights Law

Both International Humanitarian Law (IHL) and International Human

Right Law (IHRL) strive to protect the lives, health and dignity of
individuals, albeit from a different angle. It is therefore not surprising that,
while very different jn formation, the essence of some of the rules is similar,

5 Article 2(4), 2 (7), 39,41, 51 of U.N. Charter.

if not identical. For example, the two bodies of law aim to protect human
life, prohibit torture or cruel treatment, prescribe basic rights for person
subject to a criminal justice process, prohibit discrimination, comprise
provisions for the protection of women and children, and regulate aspects of
the right to food and health. On the other hand, rules of IHL deals with
many issues other than those are outside the purview of IHRL, such as the
conduct of hostilities, combatant and prisoner of war status and the
protection of the Red Cross and Red Crescent emblems. Similarly, IHRL
deals with aspects of life in peacetime that are not regulated by IHL, such as
freedom of the press, the right to assembly, to vote and to strike.6

Humanitarian law applies in situation of armed conflict, whereas

human rights, or at least some of them, protect the individual at all times, in
war and peace alike. However, some human rights treaties permit
governments to derogate from certain rights in situations of public
emergency. No derogations are permitted under IHR because it was
conceived for emergency situations, namely armed conflict.

Humanitarian law aims to protect people who do not or are no longer

taking part in hostilities. The rules embodied in IHL impose cluties on all
parties to a conflict. Human rights, being tailored primarily for peacetime,
apply, to everyone. Their principal goal is to protect individuals from
arbitrary behavior by their own governments. Human rights law does not
deal with the conduct of hostilities.

The duty of implement IHL and human rights lies first and foremost
with states. Humanitarian law obliges state to take practical and legal
measures, such as enacting penal legislation disseminating IHL. Similarly,
states are bound by human rights law to accord national law with international
obligations. Notably, states are required to ensure also by other states.

6 N.L. Mitra, Bulletin on IHR & Refugee Law, vol.l, no.l, January-June 1996.
'flli' r^Ifeififas of fn|srOe!|«0iii. fferaaaiSarliB Law;
 Charts7

Provision is also made for an enquiry procedure, a protecting power

mechanism, and the international fact- finding commission. In addition, the
ICRC is given a key role in ensuring respect for the humanitarian rules.

Classic international public law recognized the separation between the

law of peace and the law of war. Depending on the state of international
relations, either the corpus juris of the law of peace or that of the law of war
was applied. The adoption of the United Nations Charter in 1945 and of
subsequent major human rights documents changed this surgically clear
division. Since then there have been norms which are valid both in peacetime
and in times of war.8 As with every innovation, this development was not
immediately accepted by all. In particular, those who subscribed to the so-
called separation theory rejected the application of human rights norms during
armed conflicts with the argument that they and the norms of the jus in bello
were two separate fields, which could not be applied at the same time.9 This
position is rather surprising because, in classic international public law, human
rights considerations on the basis of natural law were taken into account. In this
vein, Bluntschli argued in 1872 that the declaration of war did not rescind the
legal order but “on the contrary, we recognize that there are natural human
rights that are to recognized in times of war as in peacetime../’. Furthermore,
the 1907 Hague Convention on Land Warfare refers to the parties to the treaty
as “animated by the desire to serve, even in this extreme case, the interests of

7 N.L. Mitra, Bulletin on IHR & Refugee Law, vol.l, no.l, January-June 1996.
8 Hans-Joachim Heintze, IRRC December 2004 Vol. 86 No 856 789.
9 See Otto Kimminich, Sclmtz der Menschen in bewaffneten Konjlikten, Beck, Miinchen, 1979, p. 28. 4
Johann Caspar Bluntschli, Das moderne Volkerrecht der civ'disierten Staaten, 3rd ed., Beck,
Nordlingen 1878, para. 529.

22
humanity”.10 In the light of these statements one can have doubts about the
justification of the separation theory.

Yet the separation theory seems to have supporters even nowadays. For
instance, the well-known Handbook of Humanitarian Law does not deal at all
with the topic “human rights in armed conflicts”.*11 In this regard, it may be
argued that the handbook lags behind the leading opinion expressed by the
International Court of Justice in the “Nuclear Weapons Advisory Opinion”12
and “Legal Consequences Advisory Opinion”. In these Advisory Opinions the
Court clearly rejected the position that the International Covenant on Civil and
Political Rights (ICCPR) of 19 December 1966 could only be applied in
peacetime. The wording of relevant human rights treaties supports the ICJ
jurisprudence on the subject. Indeed, these treaties contain clear stipulations
concerning the observance of human rights obligations by States Parties in
times of armed conflict. For example, Article 15 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4
November 1950 deal with the fate of human rights norms in situations in which
the life of a nation is threatened by war or other public emergencies.

Under such circumstances the respective State Party is allowed to “take

measures derogating from its obligations under this Convention”. However, the
human rights enshrined in the ECHR may be limited only to the extent strictly
required by the exigencies of the situation. Some of the rights explicitly
mentioned in the foregoing articles may not be derogated from (inter alia the

10 Preamble, Convention (IV) respecting the Laws and Customs of War on Land, signed at The Hague,
18 October 1907, in: Dietrich Schindler and Jiri Toman (eds.), The Law of Armed Conflicts: A
Collection of Conventions, Resolutions and Other Documents, 4th ed., Nijhoff, Leiden, 2004, p. 55.
11 Dieter Fleck (ed.), Handbook of Humanitarian Law in Armed Conflict, Oxford University Press,
Oxford, 1995.
12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 26.

23
right to life, the freedom of belief and the prohibition of torture). These human
rights are called non-derogable, which means that they are to be applied in all
circumstances, without exception. The traditional impermeable border between
international humanitarian law, which applies during armed conflicts, and the
law of peace is thereby crossed. This “crossing of the border” is further
supported by Article 3 common to the Geneva Conventions of 12 August 1949
containing a list of rights which are to be protected in all circumstances.
Interestingly, these rights broadly cover the non-derogable human rights. This
very configuration is what led academics to draft the “Turku Declaration”,13
which called for the legal grey zones in the border areas of the law of peace
and the law of war to be filled by the cumulative application of human rights
law and international humanitarian law, thereby guaranteeing at least minimum
humanitarian standards.14

The ECHR is not the only instrument referring to the applicability of

human rights in wartime. A further regional human rights instrument, the
American Convention on Human Rights of 22 November 1969, lists in its
Article 27 non-derogable rights which cannot be abrogated in times of war.
Universal human rights treaties also refer to non-derogable rights. For example,
Article 4 of the ICCPR includes an emergency clause similar to that formulated
in regional instruments.

All these human rights instruments show that human rights are an
intrinsic part of the legal rales governing wars and other emergency situations.
Taking into account the obligation of States to respect non-derogable rights in
all circumstances, according to human rights instruments and the final

13 UN Doc. E/CN.4/Sub.2/1991/55.
14 See Allan Rossas and Theodor Meron, “Combatting lawlessness in grey zone conflicts through
minimum humanitarian standards”, American Journal of International Law, Vol. 89, No. 2, 1995, p.
215

24
document of the First World Conference on Human Rights in Teheran in 1968,
Cema concluded in 1989 that international public law had already been
“transformed into a branch of human rights law and termed ‘human rights in
armed conflicts’”.15

The Convention on the Rights of the Child (CRC) adopted in 1989

impressively corroborates this view. Here the substantial overlap between
international human rights protection and international humanitarian law
becomes obvious. Article 38(1) of that Convention obliges the States Parties to
undertake to respect and ensure respect for rules of international humanitarian
law that deal with the protection of children. Thus a human rights treaty,
normally applicable in peacetime, contains provisions that are not only
applicable in armed conflicts but are also enshrined in the law regulating armed
conflicts.

The regulations are even more detailed because Article 38 (2), (3) and
(4) repeats the standards laid down in Article 77 of Additional Protocol I to the
Geneva Conventions that restricts the recruitment and participation of children
in armed conflicts. Those standards, adopted in 1977, permit the recruitment
and direct participation of children from the age of fifteen onwards.

This undoubtedly unsatisfying standard in the CRC of 1989 runs counter

both to the progressive codification of international public law and to the goal
of the Convention, which, according to Article 3, is to ensure that the “best
interests” of the child (defined in Article 1 as a person below the age of
eighteen years) are protected. It is most unlikely that it is in the interest of a
child aged fifteen to take direct part in hostilities.

15 Christina M. Cema, “Human rights in armed conflict: Implementation of international humanitarian

law norms by regional intergovernmental human rights bodies”, in Frits Kalshoven and Yves Sandoz
(eds.), Implementation ofInternational Humanitarian Law, ICRC, Geneva, 1989, p. 39.

25
 This contradiction has been severely criticized in legal literature.
Particularly at issue is why the 1989 Convention on the Rights of the Child,
which was drawn up more than a decade after the adoption of the Additional
Protocols to the Geneva Convention and marks considerable progress in
codification of the protection of the individual, contains no protection
exceeding that of Article 77 of Additional Protocol I.16 This failure is all the
more regrettable because, when the CRC was being negotiated, the opponents
of the relevant improvement in child protection (in particular the USA, Iran and
Iraq) had not put forward a very sturdy legal argument. As a matter of fact, the
USA was of the opinion that neither the General Assembly nor the Human
Rights Commission was suitable for the revision of existing international
tH
humanitarian law.

However, the American argument, which is based on the aforementioned

traditional separation of the law of peace and the law of war, is not on the
relationship between human rights law protection and international
humanitarian law convincing, for the CRC was intended to be a new,
independent treaty and not a revision or amendment of international
humanitarian law. It can moreover also be argued that obligations over and
above the general standards should have been laid down for the States party to
the new instrument, as is definitely possible in treaty law. Since many feared a
lowering of standards, the American argument was not further discussed. The
USA later departed from its position when, in 1992, it signed the Optional
Protocol on the involvement of children in armed conflict to the CRC. This
Protocol, adopted in 2000 through Resolution 54/263 of the UN General

16 Hans-Joachim Heintze, “Children need more protection under international humanitarian law Recent
developments concerning Article 38 of the UN Child Convention as a challenge to the International
Red Cross and Red Crescent Movement”, Humartitares Volkerrecht Jnformationsschriften, Vol. 8, No.
3,1995, p. 200.
17 UN Doc. E/CN.4/1989, p. 55, Add.l, p. 6.

26
Assembly, obliges the States Parties to take all feasible measures to ensure that
children under the age of 18 do not take a direct part in hostilities. It entered
into force on 12 February 2002 and has to date been ratified by 52 States. This
means that, at least where these States are concerned, the standard of protection
is higher than that propounded in international humanitarian law.18

The example of the CRC demonstrates not only that the law of peace and
the law of war overlap but also that, when examining which duties are
incumbent on a State in times of armed conflict, it is not possible to avoid
taking international human rights law into consideration. This situation alone
justifies speaking of a convergence of both bodies of law which is more far-
reaching than only “a natural convergence of humanitarian principle underlying
these two bodies of law.”19 Convergence here means an overlap in terms of the
scope of protection. However, the distinction between the two areas of law,
which is primarily procedural, must be borne in mind. The convergence
approach opens the possibility for the cumulative application of both bodies of
law.

The cumulative application of human rights law and humanitarian law

some obligations in human rights treaties remain in force during armed
conflicts. The result is undoubtedly a substantial overlap of both bodies of law.
However, the response of legal opinion to this situation differs.

18 This aspect was not taken into consideration by Matthe Happold, “The Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed conflict”, in Horst
Fischer (ed.), Yearbook of International Humanitarian Law, Vol. 3, 2000, Asser Press, The Hague,
2002, p. 242.
19 Dale Stephens, “Human rights and armed conflict: The Advisory Opinion of the International Court of
Justice in the Nuclear Weapons case’’’, Yale Human Rights & Development Law Journal, Vol. 4, No.
l,p. 2.

27
 Some authors argue against “advocating a merger of the two bodies of
international law” and speak of the theory of complementarities. According to
this theory, human rights law and international humanitarian law are not
identical bodies of law but complement each other and ultimately remain
distinct. This is undoubtedly true, but the point is that they do overlap.

Although the ICRC has in the past approached the subject cautiously, it
is nowadays involved in the establishment of common values that transcend
legalistic arguments and distinctions. For example, it has published a special
edition of the Review on the convergence of international humanitarian and
human rights law. The somewhat more assertive convergence theory is gaining
in influence. It goes further than mere complementarities and aims at providing
the greatest effective protection of the human being through the cumulative
application of both bodies of law. Reference can consequently be made to one
unified complex of human rights beneath different institutional umbrellas.21

A glance at the most recent State practice shows that this is not merely
theory. Examples are Kuwait in 1991 and Iraq in 2003-2004. The cumulative
application of both bodies of law during the armed conflict in Kuwait was both
“feasible and meaningful” and clarified the practical meaning of the
convergence theory applied to the occupying regime in Kuwait in 1990/91.
Parallels can be drawn between this and the situation in Iraq in 2003-2004.
Security Council Resolution 1483 (2003), which lays down the basic principles
for the occupation and reconstruction of Iraq, requires all “involved” to fulfil
their obligations under international law, especially those according to the

20 Hans-Peter Gasser, “International humanitarian law and human rights law in non-international armed
conflict: Joint venture or mutual exclusion?”, German Yearbook of Internationa! Law, Vol. 45,
Duncker & Humblot, Berlin, 2002, p. 162.
21 Theodor Meron, Human Rights in Internal Strife: Their International Protection, Cambridge
University Press, Cambridge, 1987, p. 28.

28
Geneva Conventions, and requests the Secretary-General’s Special
Representative for Iraq to work for the promotion of human rights protection.
On the relationship between human rights law protection and international
humanitarian law, it goes without saying that such duties require the cumulative
application of international humanitarian law and human rights law. With
regard to cumulative application, three points need to be underscored:

(i) The interpretation of rights and duties must refer to both areas of
law. It is, for example, difficult to interpret the term “inhuman
treatment” found in human rights law in any other way than
according to the requirements of the Third Geneva Convention, as it
has a specific meaning in the context of a prisoner-of-war camp. On
the other hand the requirements of paragraph 1(c) of Article 3
common to the four Geneva Conventions could not be fulfilled,
after considering “the legal guarantees deemed imperative by
civilized nations” in criminal proceedings, without applying the
human rights instruments.

(ii) Human rights law strengthens the rules of international

humanitarian law by providing a more exact formulation of State
obligations. Thus the duties arising from Article 55 of the Fourth
Geneva Convention and pertaining to health care have to be
applied in the light of the right to health contained in the
International Covenant on Economic, Social and Cultural Rights.
In the separation of rape, as a method of war and as prohibited by
international humanitarian law, from torture, the human rights law

29
 provisions of the UN Convention against Torture must necessarily
99
be resorted to.

(iii) International humanitarian law brings human rights law into effect
by spelling out, for example, the duties regarding missing persons.
Even though “disappearances” undoubtedly represent a serious
human rights violation, the relevant law regarding the obligations
of States in such cases is very underdeveloped. In times of armed
conflict, the occupying power is obliged by the Third and Fourth
Geneva Conventions to provide information about detained
persons, including notification of the death of detained persons
and the possible causes thereof, and to search for persons whose
fate is unknown.

In a report to the Security Council entitled “On the Protection of

Civilians in Armed Conflict”, the UN Secretary-General voiced his opinion
on the cumulative application of all norms which protect the individual, at least
those civilians as defined in the Geneva Conventions and their Protocols. He
recommended States to ratify equally the relevant instruments of international
humanitarian law, international human rights law and refugee law, as all three
are “essential tools for the legal protection of civilians in armed conflicts”.

From a practical point of view the growing recourse to international

humanitarian law protection is, of course, also a result of the increased
occurrence of civil conflicts, which often take place in a grey zone in terms of
that law owing to its relatively few rules governing such situations. Its practical

22 UNTS, Vol. 1465, p. 85. See Deborah Blatt, “Recognizing rape as a method of torture”, New York
University Review ofLaw and Social Change, Vol. 19, No. 4, 1994, p. 821.
23 UN Doc. S/1999/957.

30
importance for parties to conflict has been convincingly pointed out in legal
literature.

2.3.1 International Humanitarian Law as lex specialis

The cumulative application of human rights law and international

humanitarian law inevitably raises the question of the reciprocal relationship.
The ICJ had to answer this question in the Nuclear Weapons Advisory
Opinion24 because the advocates of the illegality of the use of nuclear weapons
had argued that such use violated the right to life laid down in Article 6 of the
ICCPR.25 Article 6 of the ICCPR stipulates that: “No one shall be arbitrarily
deprived of his life.” The ICJ established in its Opinion that Article 6 is a non­
derogable right and consequently also applies in armed conflict, and that even
during hostilities it is prohibited to “arbitrarily” deprive someone of their life.
'yzr
In the same Opinion , the ICJ recognizes the primacy of international
humanitarian law over human rights law in armed conflicts, thereby
designating the former as lex specialis. The term “arbitrarily” is, therefore, to
be defined according to international humanitarian law.

The Human Rights Committee, too, stresses in its General Comment on

Article 2 that the ICCPR applies also in situations of armed conflicts to which
the rules of international humanitarian law are applicable. However, the Human
Rights Committee is not as crystal clear as the ICJ because it avoids touching
on the lex specialis issue: “While, in respect of certain Covenant rights, more
specific rules of international humanitarian law may be especially relevant for

24 1LM 35 (1996), 809 at 821 para 31.

23 According to Greenwood this viewpoint was taken by Malaysia, Salomon Islands and Egypt. See
Christopher J. Greenwood, “Jus helium and jus in hello in the Nuclear Weapons Advisory Opinion”,
in: Laurence Boisson de Chazoumes and Philippe Sands (eds.), Internationa! Law, the International
Court of Justice and Nuclear Weapons, Cambridge University Press, Cambridge, 1999, p. 253.
humanitarian law
26ILM 35 (1996), 809 at 821 para 31.

31
the interpretation of Covenant rights, both spheres of law are complementary,
not mutually exclusive.”27 The lex specialis character of international
humanitarian law is nevertheless essential. In certain circumstances human
rights law cannot be considered; for example a combatant who, within the
scope of a lawful act during an armed conflict, kills an enemy combatant
cannot, according to jus in bello, be charged with a criminal offence.

The evaluation given in the ICJ Opinion has been welcomed by

academics, mainly for its clarification that the norms developed for peace time,
i.e. human rights law, cannot be applied “in an unqualified manner” to armed
conflicts. Human rights have instead to be inserted into the structure of
international humanitarian law in a sensitive manner.28 The primacy of
international humanitarian law is herewith emphasized. It must, however, be
noted that the provisions of human rights law as a whole remain valid as
prescribed in Article 4 of the ICCPR (and the analogous regional treaties) and
are consequently of importance. The ICJ in its Advisory Opinions therefore
supports the need to regard the protection granted by international humanitarian
law and human rights law as a single unit and to harmonize the two sets of
international rules.

Admittedly, such a viewpoint inevitably raises the lex specialis derogate

legis generalis objection. It can be refuted by reference to the Martens Clause,
which is accepted both in international treaties and in customary international
law. This clause confirms that the rules of the laws pertaining to armed
conflicts cannot be regarded as the final regulation of the protection of human
beings, but can be supplemented with human rights law protection.

27 UN Doc. CCPR/C/74/CPR.4/Rev.6.
28 Michael J. Matheson, “The opinions of the International Court of Justice on the threat or use of nuclear
weapons”, American Journal of International Law, Vol. 91, No. 3, 1997, p. 423.

32
 Article 72 of 1977 Additional Protocol I also proves the “openness of the
international laws of armed conflicts”, as it specifies with regard to the
treatment of persons who find themselves in the power of a party to conflict
that “the provisions of this Section are additional to other applicable rules of
international law relating to the protection of fundamental human rights during
international armed conflict”.

The interpretation of the right to life by human rights law in times of

armed conflict becomes more obvious in regional human rights instruments
than in the ICCPR. In Article 15 of the ECHR, for instance, it is made clear that
cases of death as a result of legal acts of war are not to be regarded as a
violation of the right to life spelled out in Article 2 of the ECHR.

2.4 International Humanitarian Law and International

Criminal Tribunal

International humanitarian law has played a decisive role in this

development, as both the laws and customs of war and the rules for the
protection of victims fall within its material scope. Indeed;, an initial proposal to
reach agreement on the establishment of an international criminal court was
formulated in the nineteenth century with a view to prosecuting violations of
the Geneva Convention for the Amelioration of the Condition of the Wounded
in Armies in the Field, which was adopted in 1864.

In 1907 the states codified the laws and customs of war applicable to war
on land in the Hague Convention No. IV and its annexed Regulations. The
Convention provides that the obligations set down in its rules are binding on
the states parties, but at the end of the First World War the peace treaty signed
at Versailles in 1919 established that Kaiser William II of Germany, whom it
publicly arraigned for a supreme offence against international morality and the

33
sanctity of treaties, and those who had carried out his orders were personally
responsible. It thus recognized the right of the Allied and associate
governments to establish military tribunals for the purpose of prosecuting
persons accused of having committed war crimes.

The responsibility, not only of the states but fundamentally of

individuals, was thus established as a principle of international law, allowing
grave breaches of international humanitarian law to be prosecuted by
international tribunals established for that purpose.

The situation continued to evolve. During the Second World War

various Allied governments expressed the desire to investigate, tiy and punish
war criminals. The Moscow Declaration, adopted in October 1943, set the stage
for the 1945 London Agreement to which was appended the Charter of the
International Military Tribunal for the Prosecution and Punishment of the
Major War Criminals of the European Axis (the Nuremberg Tribunal). The
commander in-chief of the occupying forces in Japan established the Tokyo
Tribunal for the same purpose. Once again, therefore, it was agreed that, in the
context of international law, certain kinds of conduct could qualify as crimes
and that by virtue of the law those considered to be responsible for them could
be prosecuted.29

The adoption of the Charters of the Nuremberg and Tokyo Tribunals

gave significant impetus to the codification of international humanitarian law:
for the first time treaty based rules defined a series of criminal offences for
which individuals could be held accountable, and at the same time courts were

29 H. D. T. Gutierrez Posse

34
instituted that took effective action and set out a series of universally
recognized principles.30

It must be borne in mind, however, that at that point in the development

of the law, for conduct to be considered unlawful it had to be connected with
war, that is, with an armed struggle between two or more states.

In the late twentieth century, the serious violations of international

humanitarian law perpetrated during the armed conflicts in the former
Yugoslavia gave rise, no longer by agreement between sovereign states but
rather by decision of the United Nations Security Council, to the establishment
of an international criminal tribunal for the prosecution of the presumed
perpetrators; shortly thereafter another ad hoc international criminal tribunal
was established in the wake of the grave events that had taken place within a
■5 1

state: Rwanda. In other words, developments in the law that took the form of
collective and effective measures to prevent and eliminate threats to peace
resulted in the establishment of international jurisdictions whose mandate is to
prosecute individuals accused of having committed crimes under international
law. These are international bodies that do not make law or legislate in respect
of the law; their role is to apply existing law.

The final step was the establishment by treaty of the International

Criminal Court, a permanent body whose role is to prosecute what the
international community as a whole considers being the most serious
misconduct, including, of course, war crimes. Thus the institution of
international criminal courts authorized to prosecute individuals for their
conduct when states do not want or are not in a position to do so is related to

30 See also Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808
(1993)
31 Security council Resolution 955 (1994).

35
and directly influenced by the content of international humanitarian law and the
definition as war crimes of grave breaches thereof.

2.5 International Humanitarian Law and Terrorism

It is in large part owing to debate over the relationship between armed

conflict and acts of terrorism, the question that is most frequently asked is
whether IHL has a role to play in addressing terrorism.

An examination of the adequacy of international law, including IHL, in

dealing with terrorism obviously begs the question, “what is terrorism?”
Definitions abound, both in domestic legislation and at the international level
but, as is well known, there is currently no comprehensive international legal
definition of the term. The United Nations draft Comprehensive Convention on
International Terrorism has been stalled for several years because of the issue,
among others, whether and how acts committed in armed conflict should be
excluded from its scope.

However, regardless of the lack of a comprehensive definition at the

international level, terrorist acts are crimes under domestic law and under the
existing international and regional conventions on terrorism and they may,
provided the requisite criteria are met, qualify as war crimes or as crimes
against humanity. Thus, as opposed to some other areas of international law,
“terrorism” although not universally defined as such is abundantly regulated.
The ICRC believes, however, that the very term remains highly susceptible to
subjective political interpretations and that giving it a legal definition is
unlikely to reduce its emotive impact or use.

32 International humanitarian law and the challenges of contemporary armed conflicts, Document
prepared by the International Committee of the Red Cross for the 30th International Conference of the
Red Cross and Red Crescent, Geneva, Switzerland, 26-30 November 2007.

36
 IHL is the body of rules applicable" when armed violence reaches the
level of armed conflict, and is confined only to armed conflict, whether
international or non-international. The relevant treaties are, of course, the four
Geneva Conventions of 1949 and their two Additional Protocols of 1977,
although IHL encompasses a range of other legally binding instruments and
customary law as well. While IHL does not provide a definition of terrorism, it
explicitly prohibits most acts committed against civilians and civilian objects in
armed conflict that would commonly be considered “terrorist” if committed in
peace time. It is a basic principle of IHL that persons engaged in armed conflict
must at all times distinguish between civilians and combatants and between
civilian objects and military objectives. The principle of distinction is a
cornerstone of IHL. Derived from it are specific rules aimed at protecting
civilians, such as the prohibition of deliberate or direct attacks against civilians
and civilian objects, the prohibition of indiscriminate attacks and of the use of
“human shields,” and other rules governing the conduct of hostilities that are
aimed at sparing civilians and civilian objects from the effects of hostilities.
IHL also prohibits hostage-taking, whether of civilians or of persons no longer
taking part in hostilities. Once the threshold of armed conflict has been reached,
it may be argued that there is little added value in designating most acts of
violence against civilians or civilian objects as “terrorist” because such acts
already constitute war crimes under IHL. Individuals suspected of having
committed war crimes may be criminally prosecuted by States under existing
bases of jurisdiction in international law; and, in the case of grave breaches as
defined by the Geneva Conventions and Additional Protocol I, they must be
criminally prosecuted, including under the principle of universal jurisdiction.

33 International humanitarian law and the challenges of contemporary armed conflicts, Document
prepared by the International Committee of the Red Cross for the 30th International Conference of the
Red Cross and Red Crescent, Geneva, Switzerland, 26-30 November 2007.

37
 IHL also specifically prohibits “measures of terrorism” and “acts of
terrorism” against persons in the power of a party to the conflict. Thus, the
Fourth Geneva Convention (Article 33) provides that “collective penalties and
likewise all measures of intimidation or of terrorism are prohibited,” while
Additional Protocol II (Article 4(2)(d)) prohibits “acts of terrorism” against
persons not or no longer taking part in hostilities. The context in which referral
is made to these prohibitions suggests that the main aim is to underline a
general principle of law, namely, that criminal responsibility is individual and
that neither individuals nor the civilian population as a whole may be subjected
to collective punishment, which is, obviously, a measure likely to induce terror.
In sections dealing with the conduct of hostilities, both Protocols additional to
the Geneva Conventions also prohibit acts aimed at spreading terror among the
civilian population. Additional Protocol I (Article 51(2)) and Additional
Protocol II (Article 13(2)) stipulate that: The civilian population as such, as
well as individual civilians, shall not be the object of attack. Acts or threats of
violence the primary purpose of which is to spread terror among the civilian
population are prohibited. The main purpose of these provisions is to reiterate
the prohibition of acts committed in international or non-international armed
conflict that do not provide a definite military advantage. While even a lawful
attack against a military objective is likely to spread fear among civilians, these
rules prohibit attacks specifically designed to terrorize civilians such as
campaigns of shelling or sniping at civilians in urban areas that cannot be
justified by the anticipated military advantage. The explicit prohibition of acts
of terrorism against persons in the power of the adversary, as well as the
prohibition of such acts committed in the course of hostilities along with the
other basic provisions mentioned above demonstrate that IHL protects civilians
and civilian objects against these types of assault when committed in armed

38
conflict. Thus, in current armed conflicts, the problem is not a lack of rules, but
a lack of respect for them.

A recent challenge for IHL has been the tendency of States to label as
“terrorist” all acts of warfare committed by organized armed groups in the
course of armed conflict, in particular non-intemational armed conflict.
Although it is generally agreed that parties to an international armed conflict
may, under IHL, lawfully attack each other’s military objectives, States have
been much more reluctant to recognize that the same principle applies in non-
intemational armed conflicts. Thus, States engaged in non-intemational armed
conflicts have, with increasing frequency, labelled any act committed by
domestic insurgents an act of “terrorism” even though, under IHL, such an act
might not have been unlawful (e.g. attacks against military personnel or
installations). What is being overlooked here is that a crucial difference
between IHL and the legal regime governing terrorism is the fact that IHL is
based on the premise that certain acts of violence against military objectives are
not prohibited. Any act of “terrorism” is, however, by definition, prohibited
and criminal.

The need to differentiate between lawful acts of war and acts of

terrorism must be borne in mind so as not to conflate these two legal regimes.
This is particularly important in non-intemational armed conflicts, in which all
acts of violence by organized armed groups against military objectives remain
in any event subject to domestic criminal prosecution. The tendency to
designate them additionally as “terrorist” may diminish armed groups’
incentive to respect IHL, and may also be a hindrance in a possible subsequent
political process of conflict resolution.

39
Ban on Terrorism by International Humanitarian Law

International humanitarian law deploys its effect in armed conflict. Thus

the 1949 Geneva Conventions deal with acts of terrorism only insofar as they
occur in the context of an armed conflict or, in plain language, of a war.
Violence against persons and destruction of property are inherent in warfare.
The use of deadly force against persons and objects is contrary to international
humanitarian law only if such acts transgress the limits established by the
international rules. Violence is also one of the salient features of terrorism.
International law must therefore draw a line to distinguish the violence which is
legitimate in war from acts of terrorism, i.e. illicit recourse to violence. How is
this distinction achieved? International humanitarian law approaches the
problem from two angles. First, the right to use force and commit acts of
violence is restricted to the armed forces of each party to an armed conflict.
Only members of such armed forces have the “privilege” to use force against
other armed forces, but their right to choose methods or means of warfare is not
unlimited. On the other hand, only members of armed forces and military
objectives may be the target of acts of violence. Second, other categories of
persons, in particular the civilian population, or of objects, primarily the
civilian infrastructure, are not legitimate targets for military attacks they are, in
the words of the Geneva Conventions, “protected” and must in all
circumstances be spared.

International humanitarian law does not grant unfettered licence to use

any conceivable form of violence against the other party to an armed conflict.
Since time immemorial international rules have drawn a line between methods
and means of warfare which are legitimate and those which are not, such as the
use of chemical weapons or the assassination of civilians not taking part in the

40
hostilities. To resort to illegal methods and means violates the legal order and,
in aggravated circumstances, can be prosecuted as a crime under domestic law
or as a war crime. Consequently, members of armed forces, though entitled to
commit acts of violence, may be held responsible for violations of rules
protecting persons or civilian property. In other words, officers and ordinary
soldiers may (or must) be prosecuted at the domestic or international level and
punished for terrorist acts they are found to have committed.

2.6 The Soul and Spirit of Humanitarian Law

The soul searching of humanitarian law has been made by Henry Dunant
in his book ‘A Memory of Solferino’34. Of course, almost during the same time,
Francis Lieber also pleaded for a similar course of action. Dunant4s deep
concern originated out of the awe of the modem war and its lingering impact on
the maimed, deserted and distressed people, some who fought as victims of
war, not knowing what their fault was. He listened to the demand of the soul of
humanism and was deeply ‘shocked by the absence of any form of help for the
wounded and dying’35

A deeply shocked as Dunant was at the time; he came out with two
positive codes of actions. Firstly, he advocated for (i) an ‘international
agreement on the neutralization of medical personnel in the field’ and (ii) the
creation of a ‘service organization for the assistance of war wounded’. The first
led to the Geneva Convention and the second led to the establishment of the
international committee of the Red Cross.

j4 Henary Dunant, “A Memory ofSolferino "ICRC Geneva 1986.

35 N.L. Mitra, bulletin on 1HR & refugee law, vol.l, no.l, January-June 1996.

41
 These are therefore the ‘soul’ of humanitarian law, a branch of global
activity based on the pure argument of humanism completely devoid of any
power of taking a political decision like defining any term of an international
agreement. The core and the soul of humanitarian law, therefore, is comprised
of:

(i) The first Geneva Convention for the Amelioration of the condition
of the wounded and sick in Armed Forces in the field (12th august,
1949).
(ii) The second Geneva Convention for the Amelioration of the
condition of the wounded, sick, and ship- wrecked members of the
Armed Forces at sea (12 august, 1949).
(iii) The third Geneva Convention relative to the treatment of prisoner
of war (12th August, 1949).
(iv) The fourth Geneva Convention relative to the protection of civilian
persons in time of war (12th August, 1949)

The above four Geneva Conventions have been supplemented with two
additional protocols of June 8,1977. These are:

(i) Additional Protocol to the Geneva Convention relating to the

protection of the victims of the international Armed Conflicts.

(ii) Additional protocol to the Geneva Conventions relating to the

protection of the victims of Non- International Armed Conflicts.

Besides, under the principle of jus cogens international customary law

also plays an important role.36

■l6 N.L. Mitra, Bulletin on IHR <6 Refugee Law, vol.l, no.l, January-June 1996.

42
2.7 Fundamental rules of Humanitarian Law applicable in
armed conflict.

1. Persons hors de combat and those who do not take a direct part in the
hostilities are entitled to respect for their lives and physical and moral
integrity. They shall in all circumstances be protected and treated
humanely without any adverse distinction.
2. It is forbidden to kill or injure an enemy who surrenders or who is
hors de combat.
3. The wounded and sick shall be collected and cared for by the party to
the conflict which has them in its power. Protection also covers
medical personnel, establishments, transport and materiel. The
emblem of the Red Cross is the sign of such protection and must be
respected.
4. Captured combatants and civilians under the authority of an adverse
party are entitled to respect for their lives, dignity, personal rights and
convictions. They shall be protected against all acts of violence and
reprisals. They shall have the right to correspond with their families
and to receive relief.
5. Everyone shall be entitled to benefit from fundamental judicial
guarantees. No one shall be held responsible for an act he has not
committed. No one shall subject to physical and mental torture,
corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forced do not have
an unlimited choice of methods and means of warfare. It is prohibited
to employ weapons or methods of warfare of a nature to cause
unnecessary losses or excessive suffering.

43
 7. Parties to the conflict shall at all times distinguish between the
civilian population and combatants in order to spare the civilian
persons shall be the object of attack. Attacks shall be directed solely
against military objective37

Contemporary international humanitarian law is composed of: (A) a

complex set of conventional rules, (B) customary norms and (C) jus cogens,
which the case law of the International Court of Justice helps to clarify and
interpret.

(A) Unity and complexity of treaties of International Humanitarian

Law

The systematic codification and progressive development of

humanitarian law has been in general by multilateral treaties started relatively
early when compared to other branches of international law. Contemporary
humanitarian law is the outcome of a long normative process, whose more
immediate origins date back to the late nineteenth century with the movement
towards codification of the laws and customs of war. As a result, international
humanitarian law is one of the most codified branches of international law.
This very substantial body of law is characterized by two sets of rules: the
“Hague Law”, whose provisions relate to limitations or prohibitions of specific
means and methods of warfare, and the “Geneva Law”, which is mainly
concerned with the protection of victims of armed conflicts, i.e. non-
combatants and those who do not or no longer take part in the hostilities.39

37 Drafted by a group of legal experts from ICRC and the federation and published in the International
Review of the Red Cross, 1978,pp.248-249.
38 M. Howard, G.J. Andreopoulos & M.R. Shulman, The Laws of War: Constraints on Warfare in the
Western World, Yale University Press, New Haven/London, 1994
39 F. Bugnion, “Law of Geneva and Law of The Hague”, International Review of the Red Cross, No. 844,
2001, pp. 901-922.

44
With the adoption of the Additional Protocols of 1977, which combine both
branches of international humanitarian law, that distinction is now mainly
historical and didactic?

In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or

Use of Nuclear Weapons40, the International Court of Justice acknowledges in
unequivocal terms the basic unity of international humanitarian law. It makes
definitively clear that this branch of international law contains both the rules
relating to the conduct of hostilities and those protecting persons in the power
of the adverse party. By so doing, the Court retraces the historical evolution of
humanitarian law:

“The ‘laws and customs of war’ as they were traditionally called

were the subject of efforts at codification undertaken in The Hague
(including the Conventions of 1899 and 1907), and were based
partly upon the St. Petersburg Declaration of 1868 as well as the
results of the Brussels Conference of1874. This ‘Hague Law’ fixed
the rights and duties of belligerents in their conduct of operations
and limited the choice of methods and means of injuring the enemy
in an international armed conflict. One should add to this the
‘Geneva Law’ (the Conventions of 1864, 1906, 1929 and 1949),
which protects the victims of war and aims to provide safeguards
for disabled armed forces personnel and persons not taking part in
the hostilities ”4]

The Court concludes that:

“These two branches of the law applicable in armed conflict have

40ILM 35 (1996), 809 at 821 para 31.

41 Legality ofthe Threat or Use of Nuclear Weapons, ILM 35 (1996), 809 at 821 para 31.

45
 become so closely interrelated that they are considered to have
gradually formed one single complex system, known today as
international humanitarian law. The provisions of the Additional
Protocols of 1977 give expression and attest to the unity and
complexity of that law”.42

The underlying unity of international humanitarian law is grounded on

the basic values of humanity shared by every civilization. As Judge
Weeramantry points out:

“Humanitarian law and custom have a very ancient lineage. They

reach back thousands of years. They were worked out in many
civilizations -Chinese, Indian, Greek, Roman, Japanese, Islamic, modern
European, among others. Through the ages many religious and
philosophical ideas have been poured into the mould in which modern
humanitarian law has been formed. They represented the effort of the
human conscience to mitigate in some measure the brutalities and
dreadful sufferings of war. In the language of a notable declaration in
this regard (the St. Petersburg Declaration of 1868), international
humanitarian law is designed to ‘conciliate the necessities of war with
the laws ofhumanity ’. ”

The numerous treaties of humanitarian law express the continuing

concern of the international community to maintain and preserve fundamental
rules in the specific context of armed conflicts, where the rule of law is
particularly threatened. According to the International Court of Justice’s own
words, the set of conventional mles applicable in time of armed conflict is:

42 Legality of the Threat or Use ofNuclear Weapons, ILM 35 (1996), 809 at 821 para 31.

46
 “fundamental to the respect of the human person and ‘elementary
considerations of humanity ’. ”

The Court thereby underlines that the same fundamental ethical values
are shared both by humanitarian law and human rights law. Despite their
different historical backgrounds and their own normative specificities, the
central concern of both branches of international law is human dignity.

They originate from the same source: the laws of humanity. In addition
to acknowledging this common conceptual framework, the Advisory Opinion
on the Legality of the Threat or Use of Nuclear Weapons43 also contributes to a
better understanding of the interplay between treaties of humanitarian law and
human rights law.44 Indeed, the Court confirms the convergence and
complementarity of human rights and humanitarian law and recognizes the
continuing applicability of human rights law in time of armed conflict:

“The Court observes that the protection of the International

Covenant of 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 a time of national
emergency. Respectfor the right to life [guaranteed under Article 6
of the International Covenant] is not, however, such a provision. In
principle, the right not arbitrarily to be deprived of one’s life
applies also in hostilities. The test of what is an arbitrary
deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, the law applicable in armed
conflict which is designed to regulate the conduct of hostilities.

43 ILM 35 (1996), 809 at 821 para 31.

44 R.E. Vinuesa., “Interface, correspondence and convergence of human rights and international law",
Yearbook ofInternational Humanitarian Law, Vol. 1,1998,pp. 69-110

47
 Thus whether a particu-lar loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of
life contrary to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself ’’

Humanitarian law can therefore be regarded as a species of the broader

genus of human rights law. This is not a distinction in terms of their intrinsic
nature, but a distinction based on the context of application of rules designed to
protect human beings in different circumstances. Although in the present case
the right to life, as guaranteed in Article 6 of the International Covenant on
Civil and Political Rights, adds no substance to the existing humanitarian law,
the Court's recognition of the continuing applicability of human rights treaties
in time of armed conflict is of considerable importance for two main reasons.
At the substantive level, provisions of human rights treaties go beyond
conventional humanitarian law and fill some normative gaps, particularly in the
context of non-international armed conflict and internal strife.45At the
procedural level, human rights treaties contain sophisticated enforcement
mechanisms that may supplement the more rudimentary mechanisms for the
implementation of humanitarian law, mainly based on a preventive and State-
oriented approach.46

(B) Customary nature of humanitarian law treaties

Already in its first Judgment, delivered on 9 April 1949 in the Corfu

45 Y. Dinstein, “The international law of civil wars and human rights”, Israel Yearbook on Human
Rights, Vol. 6,1976, pp. 62-80;
46 B.G. Ramcharan, “The role of international bodies in the implementation and enforcement of
humanitarian law and human rights law in non-international armed conflict”, American University Law-
Review, Vol. 33,1983, pp. 99-115

48
Channel Case47, the International Court of Justice referred indirectly to the
customary nature of humanitarian law treaties. The point was that a specific
obligation to notify the presence of a minefield is contained in the Hague
Convention VIII of 1907. However, Albania the defendant was not a party to it.
Moreover, this convention applies in time of war, which was not the case. The
Court considered nevertheless that:

“The obligations incumbent upon the Albanian authorities

consisted in notifying, for the benefit of shipping in general, the
existence of a minefield in Albanian territorial waters and in
warning the approaching British warships of the imminent danger
to which the minefield exposed them. Such obligations are based,
not on the Hague Convention of1907, No. VIII, which is applicable
in time of war, but on certain general and well-recognised
principles, namely: elementary considerations of humanity, even
more exacting in peace than in war; the principle of the freedom of
maritime communication; and ever not to allow
Ms}*
knowingly its territory to be us^qffot'actsifofffmry to the rights of
other States.

The Court acknowledges that thC^^ee^^provisio

ns of the Hague
Convention of 1907 were declaratory of a general principle of international
law, and therefore admits at least implicitly the customary nature of the
conventional rule expressed in the Convention. This conclusion was reiterated
by the Court in its Judgment of 27 July 1986 in the Case concerning Military

47 (1949) ICJ Rep., p.4, at 22.

48 The Corfu Channel Case, (1949) ICJ, p4, at 22.

49
and Paramilitary Activities in and against Nicaragua49:

“If a State lays mines in any waters whatever and fails to give any
warning or notification whatsoever, in disregard of the security of
peaceful shipping, it commits a breach of the principles of
humanitarian law underlying the specific provisions of Convention
No. VIII of1907”.50

The latter case was likewise an occasion for the Court to examine the
customary nature of the four Geneva Conventions of 12 August 1949.51 Indeed,
the multilateral treaty reservation of the United States appeared to preclude the
Court from applying the Geneva Conventions as treaty law. The Court,
however, did not find it necessary to take a stance with regard to the relevance
of the U.S. reservation, because:

“In its view the conduct of the United States may be judged
according to the fundamental general principles of humanitarian
law”52

The Court began its analysis with the general and unchallengeable
assessment that:

“In its view, the Geneva Conventions are in some respects a

development, and in other respects no more than the expression of
such principles ”.

Although the Court focused its judgment on two particular articles of the

49 (1986) ICJ Rep., p.I4, at p.98

30 Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ., p. 14, at p.98
51 T. Meron, “The Geneva Conventions as Customary Law”, American Journal of International Law,
Vol. 81,1987, pp. 348-370
32 Military and Paramilitary Activities in and against Nicaragua, (1986)ICJ., p. 14, at p.98

50
Geneva Conventions as reflecting customary law (i.e. common Articles 1 and
3), the generality of the formula cited above seems to postulate the customary
nature of the Geneva Conventions as such, or at least of the great majority of
their provisions. As Judge Koroma recognized ten years later:

“By reference to the humanitarian principles of international law,

the Court recognized that the Conventions themselves are reflective
of customary law and as such universally binding”.53

The intermingling of treaty law and customary law confirms that,

contrary to the commonly held opinion, custom cannot be reduced to only
general legal principles and may be as detailed and technical as conventional
provisions. But the conclusion of the Court was essentially declaratory, without
deeming it necessary to examine the opinio juris and State practice relating to
the customary nature of the Geneva Conventions. Indeed, the Court gave a
tautological explanation mainly based on the common articles on denunciation,
according to which:

“The denunciation shall in no way impair the obligations which the

Parties to the conflict shall remain bound to fulfil by virtue of the
principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity and
the dictates of the public conscience. ”54

The Court added in the same vein that the fundamental rules contained in
common Article 3

“are rules which, in the Court’s opinion, reflect what the Court in

33 Legality of the Threat or Use ofNuclear Weapons, Dissenting Opinion of Judge Koroma
34 Military and Paramilitary Activities in and against Nicaragua, (1986)ICJ., p. 14, at p.98

51
 1949 called ‘elementary considerations of humanity’.55 The Court
seemed to consider that the intrinsically humanitarian character of
the Geneva Conventions dispensed it from any explicit discussion
of the process by which treaty obligations reflect or become
customary obligations.56 The Advisory Opinion of 8 July 1996 on
the Legality of the Threat or Use of Nuclear Weapons was the
occasion for the Court to give an a posteriori justification of its
affirmation formulated ten years before. In that Opinion the Court
begins by recalling the importance of the humanitarian values on
which the whole law of armed conflicts is based: “It is undoubtedly
because a great many rules of humanitarian law applicable in
armed conflict are so fundamental to the respect of the human
person and ‘elementary considerations of humanity’, as the Court
put it in its Judgment of 9 April 1949 in the Corfu Channel Case ,
that the Hague and Geneva Conventions have enjoyed a broad
accession” 51

The Court sees a confirmation of the customary nature of humanitarian

law in the declarations of other international bodies. It recalls that:

“The Nuremberg International Military Tribunal had already

found in 1945 that the humanitarian rules included in the
Regulations annexed to the Hague Convention IV of 1907 ‘were
recognized by all civilized nations and were regarded as being

56 A. D’Amato, “Trashing customary international law”, American Journal Internationa! Law, Voi. 81,
1987, pp. 101-105
57 Legality of the Threat or Use ofNuclear Weapons

52
 declaratory of the laws and customs of war. "58

The Court also refers to the Report of the Secretary-General adopted in

1993 and introducing the Statute of the International Tribunal for the former
Yugoslavia, which was unanimously approved by the Security Council,
according to which:

“The part of conventional international humanitarian law which

has beyond doubt become part of international customary law is
the law applicable in armed conflict as embodied in: the Geneva
Conventions of 12 August 1949for the Protection of War Victims;
the Hague Convention (IV). Respecting the Laws and Customs of
War on Land and the Regulations annexed thereto of 18 October
1907; the Convention on the Prevention and Punishment of the
Crime of Genocide of 9 December 1948; and the Charter of the
International Military Tribunal of8 August 1945. ”59

The Court confirms in unambiguous terms that the large majority of the
provisions of The Hague and Geneva Conventions are declaratory of
customary law. However, the Court is less categorical with regard to the
provisions of Protocol I:

“The Court recalls that all States are bound by those rides in
Additional Protocol I which, when adopted, were merely the
expression of the pre existing customary law, such as the Martens
Clause, reaffirmed in the first article of Additional Protocol I”.60
The Court suggests therefore that Protocol I is only in part a

5S
Ibid
59
Ibid
60
Ibid

53
 codification of customary rules ofhumanitarian law. However, this
qualification of the declaratory nature of Protocol 1 does not mean
that many of its provisions, which did not codify custom at the time
of their adoption, may be considered nowadays as customary
norms. Indeed, in its famous North Sea Continental Shelf Cases61,
the Court recognizes that the set of rides contained in a multilateral
Convention may be considered “as a norm-creating provision
which has constituted the foundation of, or has generated a rule
which, while only conventional or contractual in its origin, has
since passed into the general corpus of international law, and is
now accepted as such by the opinio juris, so as to have become
binding even for countries which have never, and do not, become
parties to the Convention. Even without the passage of any
considerable period of time, a very widespread and represen-tative
participation in the convention might suffice of itself, provided it
included that of States whose interests were specially affected”.62
Although the Court did not feel the need to examine that question in
the context of Protocol I, the accession of 143 States and the
continued restatement of its validity constitute substantial signs of
the customary process in which that Protocol is involved. 63

(C) Jus cogens and principles of humanitarian law

Traditionally linked to the notion of international public order, the

concept of jus cogens presupposes that there are some rules which are so

61 (1969), ICJ Rep,p.3, at p.230.

62 North Sea Continental Shelf Cases (Federal Republic of Germany v. Danemark/Netherlands),ICJ
Reports 1969, pp. 41-42, paras. 71 and 73.
63 A. Cassese, “The Geneva Protocols of 1977 on the humanitarian law of armed conflict and customary
international law’",

54
fundamental to the international community that States can not derogate from
them.64 Jus cogens was defined for the first time in an international instrument
in Article 53 of the 1969 Vienna Convention on the Law of Treaties, according
to which:

“a peremptory norm of general international law is a norm

accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character”,65

The International Court of Justice has addressed the issue ofJus cogens
or related concepts, such as obligations erga omnes, in various contexts closely
linked to humanitarian law, e.g. fundamental human rights,66 the prohibition of
the threat or use of force, and the peoples’ right to self-determination.67 The
Court’s first reference to the notion of obligation erga omnes was made with
regard to the outlawing of genocide. In its Advisory Opinion on Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide of
28 May 1951, the Court highlights the particular nature of this Convention so
as to recognize implicitly that the outlawing of genocide represents an
obligation erga omnes:

“The Convention was manifestly adoptedfor a purely humanitarian

and civilizing purpose. It is indeed difficult to imagine a convention

64 A. Verdross, “Jus dispositivum and jus cogens in international law”, American Journal ofInternational
Law, Vol. 60,1966, pp. 55-63
55 See also Article 53 of the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations
66 Barcelona Traction, Light and Power Compagny Limited (Belgium v. Spain), ICJ Reports 1970, p. 32,
para. 33.
67 Case concerning East Timor (Portugal v. Australia), ICJ Reports 1995, p. 102, para. 29.

55
 that might have this dual character to a greater degree, since its
object on the one hand is to safeguard the very existence of certain
human groups and on the other to confirm and endorse the most
elementary principles of morality. In such a convention the
contracting States do not have any interest of their own; they
merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d’etre
of the convention. Consequently, in a convention of this type one
cannot speak of individual advantages or disadvantages 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. ”68

Later, in its Barcelona Traction Judgment of 5 February 197069, the

Court expressly confirms that the outlawing of genocide is an obligation of this
nature and clarifies the general concept of obligation erga omnes. According to
the Court:

“An essential distinction should be drawn between the obligations

of a State towards the international community as a whole, and
those arising vis-a-vis another State. By their very nature the
former are the concern of all States. In view of the importance of
the rights involved, all States can be held to have a legal interest in
their protection; they are obligations erga omnes. Such obligations
derive, for example, in contemporaiy international law, from the

68 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Reports 1951, p. 23.
69 (1970) ICJ Rep., p.3, para 33-34.

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 outlawing of acts of aggression, and of genocideas also from the
principles and rules concerning the basic rights of the human
person, including protection from slavery and racial
discrimination

More recently, in the Case concerning application of the Convention on

the Prevention and Punishment of the Crime of Genocide (Preliminary

objections) of 11 July 1996, the Court reiterates its Opinion on Reservations to

the Convention on the Prevention and Punishment of the Crime of Genocide,
according to which:

“The origins of the Convention show that it was the intention of the
United Nations to condemn and punish genocide as ‘a crime under
international law’ involving a denial of the right of existence of

entire human groups, a denial which shocks the conscience of

mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations. The first consequence arising from this conception is that
the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without
any conventional obligation. A second consequence is the universal
character both of the condemnation of genocide and of the
cooperation required ‘in order to liberate mankind from such an
odious scourge ’ (Preamble to the Convention)

The Court deduces from the object and purposes of the Convention as set
out in its Opinion of 28 May 1951 that:

57
 “the rights and obligations enshrined by the Convention are rights
and obligations erga omnes

This latter confirmation is particularly interesting for two reasons.

First, the Court considers that the adoption of the Convention on the
Prevention and Punishment of the Crime of Genocide in 1948 had the
effect of crystallizing the outlawing of genocide as an obligation erga

omnes.

Secondly, it admits that it is not only the outlawing of genocide itself

which has acquired the status of an obligation erga omnes, but the entire
Convention, including in particular the obligation to bring to trial or extradite
persons having committed, incited or attempted to commit such an international
crime.

Conversely, the Court was much less clear with regard to the legal
character of norms applicable to the conduct of hostilities and the protection of
victims of armed conflicts. In its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons70, the Court stated that there was no need

for it to deal with the issue of whether such rules are part of jus cogens or not.
It considered that the request by the General Assembly raised the question of
the applicability of humanitarian law with regard to the use of nuclear weapons
but not the question of the legal character of these norms.71 By so doing, the

Court unfortunately missed the opportunity to clarify the status of jus cogens in
international humanitarian law. Nevertheless the Court recognized that:

70ILM 35 (1996), 809 at 821 para 31.

71 Legality of the Threat or Use ofNuclear Weapons, ILM 35 (1996), 809 at 821 para 31.

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 “The fundamental rules of humanitarian law are to be observed by
all States whether or not they have ratified the conventions that
contain them, because they constitute intransgressible principles of
a 72
international customary law’\

This last expression does not belong to the existing legal vocabulary and
it was previously unknown in international law. As Professor Condorelli rightly
observed, “it is unlikely that the Court merely meant that those principles
must not be transgressed. That, indeed, is true of any rule of law that
imposes any obligation at all” The solemn tone of the phrase and its
wording show, on the contrary, that the Court intended to emphasize the
importance of humanitarian norms for international law and order as a
whole and the particularity of such norms in comparison with the other
ordinary customary' rules of international law. This enigmatic expression
of “intransgressible principles” may therefore be interpreted in two
different ways. On the one hand, the Court could be suggesting that
fundamental principles of humanitarian law constitute norms of jus
cogens in statu nascendi, which are on the point of becoming
peremptory norms of international law but cannot yet be plainly
considered as such. It can be argued, on the other hand, that by
underlining the intransgressible character of the fundamental rules of
humanitarian law, the Court implicitly admits the peremptory character
of such rules, but refrains from doing so explicitly, because it is dealing
with the more limited issue of the applicability of such norms to the case

72
Ibid
73
L. Condorelli, '"Nuclear weapons: A weighty matter for the International Court of Justice”,
International Review of the Red Cross, No. 319, 1997, p. 14.

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under consideration.

Following the same line of reasoning, some judges go one step

further and acknowledge in clear terms that the principles and rules of
international humanitarian law do have the character of jus cogens.
President Bedjaoui holds, in his Separate Opinion, that the majority of
rules of humanitarian law have to be considered as peremptory norms of
international law. Judge Weeramantry, in his Dissenting Opinion, states
categorically that:

“The rules of the humanitarian law of war have clearly

acquired the status ofjus cogens, for they are fundamental
rules of a humanitarian character, from which no derogation
is possible without negating the basic considerations of
humanity which they are intended to protect. ”74

:Jc

74 He notices that Judge Roberto Ago considered in 1971 in his course at The Hague Academy of
International Law that the rules of jus cogens include: “the fundamental rules concerning the
safeguarding of peace, and notably those which forbid recourse to force or threat of force; fundamental
rules of a humanitarian nature (prohibition of genocide, slavery and racial discrimination, protection
of essential rights ofthe human person in time ofpeace and warj”.

60