The Formation of the Treaty Law of Non-International Armed Conflicts (International Humanitarian Law Series, 14)

The Formation of the Treaty Law of Non-International Armed Conflicts

International Humanitarian Law Series VOLUME

14

Editors-in-Chiej Professor Christopher Greenwood Professor Timothy L.H. McCormack EditorialAdvisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E.Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Jiri Toman

The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, protection for victims of armed conflict and regulation of the means and methods ofwarfare questions of application of the various legal regimes for the conduct of armed conflict issues relating to the implementation of International Humanitarian Law obligations national and international approaches to the enforcement of the law and the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles in this series are listed at the end ofthis volume.

The Formation ofthe Treaty Law ofNon-International Armed Conflicts Laura Perna

MARTINUS NIJHOFF PUBLISHERS LEIDEN • BOSTON

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To my parents

Table of Contents

Foreword

xi

Acknowledgements Introduction Chapter I

The Evolution ofthe Concept of Non-International Armed Conflicts in EarlyTimes I. The Christian tradition and the conduct of hostilities in non-international armed conflicts 2. The doctrine of natural law and the social contract theory 3· Natural rights, revolutions and the legitimisation of power The theory of state sovereignty 4· Non-international armed conflicts in the work of the 5· early international law jurists: Vitoria, Ayala, Grotius, Gentili, and Vattel 6. The view of the makers of military strategy in early times

Chapter II From the Lieber Code to the Drafting ofCommon Article 3 of the Geneva Conventions: The Rise ofInternational Law Concern I. The theory of recognition of belligerency 2. The American civil war and the Lieber code 3· The role of the International Committee of the Red Cross (ICRC) in the formation of humanitarian law 4· The influence of the Spanish civil war on the development of rules of law applicable in noninternational armed conflicts 5· The evolution of the principle of state sovereignty and the formation of rules of law applicable in noninternational armed conflicts 6. The impact of the human rights movement on the international scene 7· Right to revolt and the Christian tradition 8. An overview of the drafting history of Common Article 3 to the Geneva Conventions of 1949

xiii xv

I

9 II

13

15 23 29 29 31

34

39

41

45 48 49

viii

Table of Contents

Chapter III The Evolution in the Elements Shaping the Treaty Law Rules Applicable in Non-International Armed Conflicts I. The makers of military strategy and non-international armed conflicts I. I. Internal armed conflicts and guerrilla warfare 1.2. The strategy of counter-insurgency 1.3. Case studies: Northern Ireland, Latin America, and Algeria 2. The Christian and Islamic traditions and humanitarian law: A different evolution . 3. The impact of the work of regional and international human rights bodies on the formation of rules of law relating to internal armed conflicts 4. The role of Non-Governmental Organizations (NGOs) in the formation of the treaty law of noninternational armed conflicts

6I 61

62 64 68

72 77

91

Chapter IV 1949-1980: Protocol II Additional to the Geneva Conventions of 1949 and the Conventional Weapons Convention 99 I. The drafting history of Protocol II 99 2. The background to the Conventional Weapons 107 Convention and to its Landmines Protocol Chapter V

I 98o-the Present: A Dramatic Increase in the Number of Treaty Law Rules Applicable in Non-International Armed Conflicts I. 1980-1996: The rise of international concern toward a complete ban of landmines. Amended Protocol II 2. Military Weapons and the Formatiion of Humanitarian Law: The Ottawa Process and the Second Review Conference of the Conventional Weapons Convention 3. The protection of cultural property: 'The Second Hague Protocol 4. Children and armed conflicts: The Optional Protocol to the Convention on the Rights of the Child (CRe) on the involvement of children in armed conflict

Chapter VI Reaching an Agreement on Criminalizing the Violations ofthe Rules ofLaw Applicable in Non-International Armed Conflicts: The Statute ofthe International Criminal Court (ICC) I. Punishing the law-breaker prior to the drafting of Common Article 3 to the Geneva Conventions 1.1. The Convention on the Prevention and Punishment of the Crime of Genocide (1948)

113 114

122

128

13 1

135 135

Table of Contents 2.

3·

4·

1949-1980: No liability for the violations of the law of internal armed conflicts 2.1. Article 3 Common to the Geneva Conventions and enforcement measures 2.2. 1949-1980: No prosecution for those who commit wartime offences 2·3· Protocol II Additional to the Geneva Conventions and enforcement measures 19 So-the present: The prosecution of war criminals is on the national and international agenda 3.1. The enforcement of the law of non-international armed conflicts at the national level 3. 2 . The enforcement of the law of non-international armed conflicts at the international level 3·3· The work of the ICTY relating to internal armed conflicts The International Criminal Court 4. I. Short overview of the main stages that have led to the adoption of the Rome statute The ICC and non-international armed conflicts 4·2.

ix

139 139 14° 14 2 144 144 146 149 15 2 153 154

Conclusions

159

Index

16 5

Forevvord

This book started out life as a doctoral thesis. Laura Perna had the challenge of writing her doctorate in the context of an ever-changing landscape. Our understanding of the rules applicable in non-international conflicts was being transformed, particularly with regard to rules on the conduct of hostilities and the enforcement of the law. In certain respects, the development of treaty rules and customary law in the past decade seems to have been reactive and to have occurred outside any historicalor philosophical context. The Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer ofAnti-Personnel Mines and on Their Destruction and the extension ofthe Conventional Weapons Convention to internal conflicts can be seen as no more than a response to pressure from well-organised non-governmental organisations. The case-law ofthe International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, most notably the decision on jurisdiction of the appeal chamber in the Tadic Case, from this standpoint can be seen as a great leap forward, which led directly to the provisions ofArticle 8.2.d and e of the Statute of the International Criminal Court. It occurred because of the role entrusted to a court and the way in which it discharged that role. Treaty negotiations for an international criminal court, without the precedent of the two ad hoc tribunals, would have been most unlikely to produce such a leap, even if the result has not been particularly controversial' as evidenced by the provisions of the Rome Statute. The danger in viewing such developments outside any context is that they appear random and the product simply of a particular set of circumstances. That would suggest that they lack intrinsic or extrinsic coherence or legitimacy. It may also give rise to the appearance that anything is possible, if enough pressure is put on governments. Laura Perna's study shows that these impressions are false. The continuing reluctance of States to do anything which might appear to legitimise the resort to force by non-State fighters did not require the previous avoidance of any rules on the conduct of hostilities and on weapon use. One may ask oneself whether Protocol II of 1977 to the Geneva Conventions of 1949 would have taken the extremely limited form it did, if States at that time had had access to the information contained in this study and the time to reflect upon it. It is the current situation, as reflected in the Rome Statute, which has historical, legal, moral and

xii

Foreword

philosophical coherence, not the situation as it was thought to exist in the late 19 80s. This also has implications for any future development of the rules. It is not the case that non-governmental organisations can achieve anything, provided that they apply enough pressure. It seems more likely that they can only achieve things which are coherent with the context in question. In order to identify which doors are worth pushing, they need to understand the context and not merely the desired outcome. What also emerges strikingly from this study is how little, legally speaking, has changed. Technology has changed and the quantity of information available and the speed with which it is circulated have been transformed but the essential problems remain the same. The criminal status of non-State fighters forces them to use asymmetric tactics and means of warfare, which in turn threaten the safety of civilians. Nowhere is this better illustrated than in the comments of the sixteenth century English soldier, Churchyard, who was involved in suppressing rebellion in Ireland and who also appears to have served as a mercenary in the Netherlands (chapter 1). Laura Perna's book will not only enable those dealing with "new" rules to locate those developments in a broader context, gaining a better understanding of the rules in the process. It will also be of great importance to those asking themselves "where next?" Laura Perna and Martinus Nijhoff Publishers are to be thanked for making this study available to a wider audience. Fran<;oise Hampson, University of Essex, UK

Acknowledgements

This work is based on my PhD thesis written as a PhD student at the Law Department of the University of Essex, UK. lowe to Professor Fran<;oise Hampson, my PhD supervisor, a great debt of gratitude for her invaluable suggestions and support. I am also most grateful to Professor Christopher Greenwood and to Professor Geoff Gilbert, my PhD examiners, for their constructive comments on my work. I am solely responsible for the content of the work, including any errors or omissions which may unwittingly remain.

Introduction

The purpose of this study is to trace the processes which led and continue to lead to the formation of the treaty norms applicable in non-international armed conflicts. The issue appears to be of interest as - if the purpose of humanitarian law is to achieve a balance between military necessity and humanitarian considerations, and to prevent unnecessary suffering and destruction - the rules of humanitarian law should be equally applicable to both international and internal armed conflicts. Whilst there are, however, a huge number of treaty provisions applicable to international armed conflicts, very few provisions are specifically designed to regulate non-international armed conflicts. This appears somewhat paradoxical. As, in fact, "what is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife", at first sight, one might have expected that similar provisions should apply. As this is not the case, the study tries to investigate the reasons behind the differences in the treaty law rules applicable in international and internal armed conflicts. In particular, the work tries to answer questions such as: Where does the international law of internal armed conflicts come from? Why did it evolve differently from the law regulating international armed conflicts? What factors affected its evolution and development? Did such factors change throughout the centuries? If so, how did such changes affect the content of the treaty rules? Where is the international law of internal armed conflicts going? This requires an examination ofthe formation ofthe treaty rules applicable in non-international armed conflicts. It is, in fact, necessary to examine what led to the creation of the rules applicable in non-international armed conflicts in order to see whether that explains the distinction drawn between international and non-international armed conflicts. In particular, the term formation, as covered by this study, includes what precedes and follows the creation of norms, that is to say their evolution and development. It could be said that looking at the formation of rules of law resembles looking behind the scenes of a theatre. All the people, instruments, objects, and materials directly relevant to the performance contribI

International Criminal Tribunal for the Former Yugoslavia: Decision in Prosecutor v. Dufko Tadic, Case No. IT-94-1-AR72, (2 October 1995), para. II9.

xvi

Laura Perna

ute to the final result. Whether or not the outcome is good is also their responsibility. In terms of the law-making process, formation represents the negotiation ofwhat is hoped will be a treaty. It appears that the term formation is closely linked to that of evolution. Continuing to use the theatre analogy, the term evolution, as covered by this study, could be compared to the result of the work, throughout the centuries, of the elements, which, behind the scenes of a theatre, make the performance possible. As the elements behind the formation of treaty rules change, so the resulting law has changed throughout the centuries. This study tries to identify the changes in the elements shaping treaty norms relating to internal armed conflicts and the impact of such changes on the formation of treaty law. Finally, development means what happens to a treaty norm after its adoption. As regards treaty rules, this study deals exclusively with treaty rwes specifically designed to apply in situations of internal armed conflicts. Therefore, it does not deal with internationa1law treaties that, although not designed to apply in situations ofinternal armed conflict, remain applicable even in time of conflict, albeit possibly in a modified way. In other words, it does not deal with the extent to which a non-international armed conflict affects the application ofthe rules of internationa11aw not specifically designed to address the conflict. As this study focuses on the treaty law-making process, it looks at the content of the treaty norms only in order to assess the product of this process. Therefore, the analysis of the content of the treaty norms is not analysed per se, but in relation to the treaty law-making process. The choice of treaty rules, as opposed to customary law, derives from the fact that treaty law remains an extremely valuable instrument as only the acceptance of treaty law by a large number of states is a guarantee that the rules of law are generally regarded as legally binding. Customary law is, in fact, subject to controversy. This is shown by the fact that states are often reluctant to embody in treaty law what international bodies regard as customary law or to ratify treaties which contain rules that are already part of customary international1aw. 3 Furthermore, a close analysis of the formative factors of the treaty norms applicable in noninternational armed conflicts may also offer a basis for action for those interested in developing the treaty rules relating to internal armed conflicts. Non-international armed conflicts, as covered by this study, range from low intensity armed conflicts to full scale civil wars: their common denominator is the use of violent actions by politically motivated, organized armed groups, in order 2

2

3

This also explains why the study does not deal with the Biological and Chemical Weapons Conventions. As, in fact, they both prohibit the development, production and stockpiling of, respectively, biological and chemical weapons, their application in non-international armed conflicts is an indirect consequence of this prohibition. See further below, chapter VI and the conclusions.

Introduction

XVll

to oppose their governments or other armed groups. Basically, the armed conflicts analysed fall within the ranges of armed conflicts envisaged by Common Article 3 to the Geneva Conventions and Protocol II Additional to such Conventions. The nature of the study imposed the choice between two theoretically possible methodological approaches. It might have been possible to examine the issue thematically, for example looking at the rules on the conduct of hostilities, protection, etc. Such an approach would have, however, necessarily involved repetition and would have prevented the possibility of establishing a pattern of evolution. For this reason, the alternative chronological approach has been adopted. These considerations also explain the organization of the study. In particu1ar' Chapter I deals with the period of time up until the eighteen century. As at that time theologians, political philosophers and military strategists played a major part in determining what was or was not acceptable, it is first necessary to examine the views of such actors in order to ascertain whether they distinguished between international and non-international armed conflicts. Chapter II deals with the period of time from the nineteenth century until 1949 because, in that period, whilst one finds treaty norms addressing international armed conflicts, not until 1949 does one find express provisions dealing with internal armed conflicts. Chapter III deals with general elements important to the evolution of treaty norms applicable in non-international armed conflicts from 1949 to the present day. Those elements are relevant to the treaties considered in Chapters IV, V and VI, even though those elements were themselves evolving. Once treaty provisions expressly dealing with internal armed conflicts have entered into force, an examination of the development ofthe law needs to include an examination of the impact of the law itsel£ Chapter IV deals principally with the treaty which elaborated upon Common Article 3 to the Geneva Conventions of 1949, that is to say Protocol II Additional to those Conventions. In addition, the chapter also addresses the 1980 Conventional Weapons Convention. 4 Whilst that treaty was only applicable in international armed conflicts, it is examined in the context of this study on account of the elements considered in Chapter V. ChapterV, in fact, addresses treaties concluded between 1981 and the present day as during this period of time there has been a dramatic increase in the number of treaties applicable in non-international armed conflicts. What is remarkable about the significant number of treaty texts which need to be examined in the chapter is that none of them attempts to supplement Protocol II Additional to the Geneva Conventions, or none deals generally with regulation of non-international armed conflicts. Rather, they address specific problems, which have occurred in such

4

The formal title of the Convention is "United Nations 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".

xviii Laura Perna conflicts. In particular, this chapter examines Amended Protocol II,S the Ottawa Convention, 6 the Second Hague Protocol for the Protection of Cultural Property in the Event ofArmed Conflict, the Optional Protocol to the Convention on the Rights of the Child, and the Conventional Weapons Convention as amended by the Second Review Conference. The matters dealt with in Chapters I-Vall involve the creation of norms; they do not address the enforcement, particularly through criminal law. This issue is dealt with in Chapter VI, which, therefore, addresses the enforcement of the rules applicable in internal armed conflicts, particularly through criminal sanctions. Whilst the principal focus of concern in this chapter is the statute of the International Criminal Court, that has to be approached in light of the evolution of international criminal law in the field. Finally, by analysing the formation of the treaty norms applicable in internal armed conflicts, the study also seeks to identify possible explanations for the apparent dramatic increase in the amount of applicable law. The issue will be addressed in the conclusions, which will also seek to identify possible areas of future developments.

5 6

The formal title of the treaty is "Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices". The formal title of this Convention is "Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction" . Unlike the Biological and Chemical Weapons Conventions, the Ottawa Convention is analysed in order to show the evolution of the international concern relating to anti-personnel landmines following the adoption of Amended Protocol II and because of the peculiarities in the treaty-law making process of this Convention.

Chapter I The Evolution of the Concept of Non-International Armed Conflicts in Early Times

This chapter deals with the most significant authors and theories, which, in early times, helped shape the law of non-international armed conflicts. It analyses a period of time which goes from the Biblical tradition to the eighteenth century, focusing, in particular, on the contribution of the Christian[ and philosophical tradition to the development of the jus in bello in internal armed conflicts, on the work of the early international law jurists on the subject, and on the early military tradition. This work is mainly conducted through the analysis of relevant passages of the work of the most representative thinkers of the religious, philosophical and military tradition that have marked important steps in the development of the regulation of non-international armed conflicts in early times. I.

The Christian tradition and the conduct ofhostilities in non-international armed conflicts

The Christian doctrine distinguished very clearly between conflicts within a group (rebellion), and conflicts between groups, (for example, conflicts between independent Princes), and differentiated the norms applicable to the two situations. As regards the latter kind of conflicts, which could be regarded as international wars, Christian authors elaborated a set ofrules to single out the conditions required to wage justifiable wars, known as the theory ofjust war. 2 In particular, according to the classic just war theory, the conditions were the following: competent authority, just cause, and right intention. Later on, the theory of the jus ad bellum led to the development of important limitations upon the conduct of hostilities, (jus in bello), such as the principle of proportionality and the principle

2

The emphasis on the Christian tradition, as a source of rules relating to non-international armed conflicts, is justified considering its impact on the early international law jurists and on the evolution of international law. (See further below, section 5). Later in the chapter, however, sources from other traditions will also be considered. The impact of the Islamic tradition on the law of war is analysed in chapter III. The Christian tradition also gave rise to Christian pacifism. As, however, Christian pacifism rules out the possibility ofwar, it has nothing to say about the rules governing the conduct of hostilities. As such, it falls beyond the scope of this study.

2

Chapter I

of distinction. 3 1he respect of such principles was added to the previous requirements necessary to have a just war. 4 As regards internal armed conflicts (i.e. a rebellion against the political authority), the contribution of early Christian thinking to the development of rules of law applicable during such conflicts has been less apparent than that given to international conflicts. As shown by the passages of Christian authors analysed below, the reasons for this resided in the fact that, not only was it difficult for an internal armed conflict to fulfill the conditions required by the just war theory; moreover, in the case of an Internal armed conflict, the interpretation of the Scriptures was used to serve different political purposes. Given this situation, during non-international armed conflicts, the Christian tradition tended either to support an unlimited fight or to put restraints only upon rebels. The apparent contradiction, within the Christian tradition, between the call to respect each human beingS and the justification of unrestricted measures against rebels was rooted in the passage from Romans (13.1) where St Paul affirms that it is the duty of Christians to obey the state, as civil rulers are divinely appointed. 6 According to this passage, since the authorities were regarded as Ministers of God,? Christian writers held that rebellion against the established authorities constituted a rebellion against God Himself and no restraints were to be used to suppress this; rather, rebels were to be treated as if they were nonChristians. 8 Rebellion was considered an evil even against an unworthy Prince: the fruit of Satan's own rebellion against God. 9 A distinction must, however, be made between a genuine Christian belief and the above interpretation of the passage from Romans, which served the con-

tingent scope of legitimising political leaders. As appears, in fact, in the famous passage of Mark, (12.17), "render to Caesar the things that are Caesar's, and to God the things that are God's", a Christian is not bound to obey his political 3

4

5 6

7 8

9

O'Brien, W.v., 1he conduct ofjust and limited war, New York, 1981, p. 37. Whilst the principle of proportionality required proportionality of military means to political and military ends, the principle of distinction prohibited intentional attacks against non-combatants and non-military targets. Ibid. Ibid., p. 163. Furthermore, if the rules were not respected, a conflict which had originally been lawful became unlawful. Ibid., p. 38. The Christian tradition holds, in fact, that every person, being fashioned in God's image, has an innate value. The passage reads as follows: "Let every person be subject to the governing authorities [as they] have been instituted by God". tbe Holy Bible, revised standard version, T. Nelson and Sons LTD, London 1957. Ex. 13. 6. "For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing". Ibid. Johnson, J.T.,just war tradition and the restraint of war, Princeton University Press, Princeton 19 81, pp. 49-59. Becon, T., tbe governance ofvertue,J. Day, London 1566, quoted in Ibid., pp. 57-58.

1he Evolution

ofthe Concept ofNon-InternationalArmed Conflicts

3

authority in all circumstances, i.e. even against the teaching of God (render to God the things that are God's). As mentioned above, although the theory of just war, as developed by Christian authors (especially by St. Augustine and Thomas Aquinas), contributed to the creation of some restraints on the conduct of international wars, such conditions could not be easily extended to internal armed conflicts. Only an independent Prince with no superior had, in fact, the competent authority to declare war. IO It was, therefore, difficult for Christian authors to regard an internal armed conflict as just, since, by definition, those who rebelled against their authorities had superiors. Thomas Aquinas expressed this concept affirming that "the natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority". II Although it is noteworthy that he admitted that there was no sedition in disturbing a government not directed to the common good, in general, he condemned internal revolts as "sedition", a mortal sin. I2 In particular, he held that if the "tyrant's rule [was] disturbed so inordinately, that his subjects suffer[ed] greater harm from the subsequent disturbance than from the tyrant's government",I3 the disturbance was to be regarded as sedition, even if, in this case, the tyrant would be held accountable for it. In the Middle Ages, the conditions to wage a just war were specified by the Decretists. I4 According to this group of canon lawyers, in order to distinguish between violence and war, it was necessary to delimit the enemy. In particular, they held that a just enemy (justus hostis) was only an enemy who had the authority to declare a war publicly and, as rebels did not fit this requirement, the vio10 II

12 13 14

Similarly, political philosophy in the sixteenth century held that the state had the monopoly on the legitimate use of force. See further below, section 4. Aquinas, T., Summa 1heologica lJllL Quest. 40, art. I. Christian classics, Westminster 1981. The relevant passage reads as follows: " In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. For it is not the business of the private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior. Moreover, it is not the business of a private individual to summon together the people, which has to be done in wartime. And as the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom or province subject to them. Andjust as it is lawfulfor them to have recourse to the sword in defending the common weal against internal disturbances, when they punish the evil-doers, according to the words ofthe Apostle (Rom. IJ:I4) [...] so too, it is their business to have recourse to the sword ofwar against external enemies". (Emphasis added). See further below, text accompanying footnotes 80 and 81, chapters 11.7 and 111.2. Aquinas, T., Summa 1heologica lIlIL Quest. 42, art.2. The Decretists were a group ofcanon lawyers who tried to apply the rules of Christian conduct to contemporary realities. The best works were produced between 1140 and 1190. Russell, F.H., 1he just war in the Middle Ages, Cambridge University Press, London 1975, p. 87·

4

Chapter I

lence used against them could not amount to war, but to an exercise of internal authority. IS The condition related to competent authority was so strong that even Calvin, who tried to find a justification for revolutions, held that the use of force in an internal revolt could be initiated legitimately, on the part of the rebels, only by officials who were in established positions within the organization of the state. The second requirement was "just cause". According to Augustine and Thomas Aquinas there was a just cause to wage war when the legal order was violated. 16 War was supposed to be waged in order to redress a wrong. "A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects or to restore what it has seized unjustly".1 7 In the case of internal fighting, following the interpretation of the passage from Romans, Christian authors held that, as a rebellion against the established authorities was a rebellion against God Himself, it represented, by definition, a violation of the legal order and, as such, it was unjust. Revolt against the established authorities only came to be justified for political and religious reasons at the time of Calvin. When, however, they were conducted for religious purposes, civil wars could easily be transformed from a rebellion to a holy war. This had the consequence of removing (both in theory and in practice) constraints on its conduct. 18 Furthermore, even if, at a later time, the rebels were given the possibility to resort to armed violence if the established authorities were oppressive and not devoted to the common good, during the fight they had to avoid inflicting greater harm than that inflicted by the government. On the one hand, this condition could lead to the development of rules regulating the conduct of hostilities in non-international armed conflicts as rebels had to minimize the distress caused by their uprising. On the other hand, this condition could create an imbalance between the two opposing parties as the same constraints did not apply to the opposing governmental party. However, since it was difficult to be

15

16

17 18

Ibid., p. 146. See also Regout, R., La doctrine de la guerre juste de Saint Augustin a nos jours, A. Pedone, ed., Paris 1935, p. 36 "L'action d'une autorite contre ses propres subordines en rebellion [...] nest pas une guerre a proprement parler, mais une application de pouvoir jurisdictionnel". The necessity to have a justus hostis to wage war also appears in the work of the early international law jurists. See further below. Hartigan, R.S., Theforgotten victim: a history of the civilian, Precedent Pub., Chicago 19 82, p. 3°· This is the definition ofjust war given by Augustine and Thomas Aquinas. Qyoted in Ibid, p. 4I. On this issue, however, (i.e., that holy wars were to be conducted without limitations), there is controversy among scholars of the just war theory. On the effect of a war waged for religious purposes on the conduct of hostilities see further below, the passage ofJohn Knox and chapter 111.2.

7he Evolution ofthe Concept ofNon-International Armed Conflicts

5

sure, in advance, that the negative effects of the revolt did not outweigh the rightness of the cause, there was little space for rebels to invoke a just cause. 19 The third requirement was that the leaders had to have just intentions. Aquinas illustrated a just intention by saying: "True religion, looks upon as peaceful those wars that are waged not for motives of aggrandisement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good".20 It followed that, as in a non-international armed conflict the authorities were considered to be in the right when they engaged in the repression of an internal revolt, the principle was capable of being applied to non-international armed conflicts, albeit one-sidedly. Whilst, in fact, the intention to wage war was "just" by definition, when the war was fought in order to suppress an internal revolt (and, therefore, the established authorities did not even need to justify the existence of this requiremene as regards the opposing armed groups, it was very difficult to achieve a just intention. Just intention could exist only if the rebels could show that they fought, as they wanted the government to be less oppressive. 22 In particular, they were supposed to fight without desire of vengeance and pursuing the goal of reconciliation and peace. 23 From this overview, it appears that the restraints on war of the just war tradition' developed to regulate wars betweenjusti hostes, could not easily be applicable to internal armed conflicts; rather, they could even represent an obstacle for a possible development of rules of law during the conduct of hostilities in internal armed conflicts. In order to show the difficulties of the official Church teachings in limiting the conduct of hostilities in non-international armed conflicts, it is worth quoting a few passages from the most representative authors which clearly explain the approach of the Christian tradition toward such conflicts in early times. The reasons for the unrestricted suppression of internal armed revolts are explained by Martin Luther (1485-1546) in his Open letter on the harsh book against the peasants. The writing tries to justify the harshness of his previous work Against the robbing and murdering hordes ofpeasants in which he urged the prince l

),

19

20

Rather, in the theory ofjust war there was a "decided inclination to place a presumption" against the possibility that rebels could achieve their goals without infringing the conditions requested to have a just cause to revolt. 0' Brien, W. V., tbe conduct of just and limited war, p. 163. Aquinas, T., Summa Theologica, quoted in Hartigan, R.S., Theforgotten victim: a history

ofthe civilian, p. 42 . 21

22

23

The objections of several states to the drafting of Common Article 3 to the Geneva Conventions and ofAdditional Protocol II echo such a supposed intrinsic justness of repressing an internal revolt. See, respectively, chapters 11.8 and IV.I. See supra, text accompanying footnote 12. 0' Brien, W.V., The conduct ofjust and limited war, p. 166. It was, however, difficult for the rebels to show that they pursued the goal of reconciliation and peace if they fought against the incumbent government and, eventually, they even overthrew it.

6

Chapter I

to use extreme measures 24 in order to quell the peasants' rebellion (1524-1525) in Germany. 25 In the following excerpts from the Open letter on the harsh book against the peasants, Martin Luther explains the intrinsic unjustness of revolutions and the necessity of an unlimited repression. The wording of the "future Protestant"26 is important as it shows how the interpretation ofthe Scripture and the classic doctrine ofjust war could serve political purposes. " [...] A rebel is not worth rational arguments [...] You have to answer people like that with ajist, until the sweat {i. e. blood] drips off their noses. The peasants would not listen [...] so their ears must now be unbuttoned with musket balls till their heads

off their shoulders [...] If anyone says that I am being uncharitable and unmerciful about this, my reply is: 7his is not a question ofmercy; we are talking of God's word. It is God's will that the king be honored and the rebels destroyed; and he is as merciful as we are [...] Here I do not want to hear or know about mercy, but to be concerned only about what God's words requires [... J The Scripture passages which speak of mercy apply to the kingdom of God [...] not to the kingdom ofthe world [ ] The kingdom ofthe world, which is nothing else than the servant of God [ ] should not be merciful, but strict, severe, and wrathful in' fulfilling its work and duty [...] Therefore God decrees, in the law ofMoses and in Exodus 22 where he institutes the sword, "you shall take the murderer from my altar, and not have mercy on him". And the Epistle to the Hebrews acknowledges that he who violates the law must die without mercy. This shows that in the

jump

exercise of their office, wordly rulers cannot and ought not be merciful [...] As

Peter and Paul say, [the temporal sword] is God's servant for vengeance, wrath, and punishment upon the wicked, but for the protection, praise and honor of the righteous [... J The merciless punishment of the wicked is not being carried out just to punish the wicked [...] but to protect the righteous and to maintain peace and safety [...] A rebel attacks the head himselfand interferes with the exercise

24

25

26

of his sword and his office, and therefore [... heJ has already been tried, judged,

He suggested the prince to "smite, slay and stab, secredy and openly" the rebels. The repression of the peasant's rebellion has been so described: "The surviving rebels were beheaded or mutilated. Their widows and orphans were left destitute. Over a thousand castles and convents lay in ashes, hundreds of villagers were burnt to the ground, the cattle killed, agricultural implements destroyed, and whole districts turned into a wilderness". Shaff, P., History of the Christian church, vol. VI, Modern Christianity: the German reformation, New York 1888, quoted in Johnson,].T.,]ust war tradition and the restraint ofwar, pp. 52-53. Martin Luther is called "future Protestant" as he did not see himself as a Protestant; he purported to speak within the established authority of the Church.

The Evolution ofthe Concept ofNon-International Armed Conflicts

7

condemned, and sentenced to death and everyone is authorized to execute him [...] No murderer does so much evil, and none deserves so much evil". 2 7

As the passage suggests, Martin Luther refused to consider the possibility of establishing rules to judge those who rebelled and, claiming that "[the rebel] has already been tried, judged, condemned, and sentenced to death and everyone is authorized to execute him", even suggested conduct that nowadays would amount to extrajudicial and summary executions. This lack ofconcern for the creation of rules that would limit the conduct of hostilities derived from the above mentioned interpretation of the Scripture, which was used to support the established political authorities and condemn the attempts to challenge them. Martin Luther also held that, if a prince was in the wrong, his subjects were allowed only to resort to a passive resistance, as "outrage is not to be resisted [i.e. by force] but endured, yet they [the people] should not sanction it, nor serve or obey or follow by moving foot or finger".28 In the mid-sixteenth century, the different political context brought about a change in the interpretation of the famous biblical passage from Romans (13.1). Catholics needed, in fact, to find justifications to fight against an apostate prince and Protestants needed to arm themselves to defend their movement. Thus, the former held that, when people fought against an apostate prince to defend the Catholic religion, they were in the right, since they were obeying a law higher than the one ordered by their prince. Rather, in this case, according to Catholic writers, the true rebel was the apostate prince himself who rebelled against the authority of the Pope and, therefore, he was to be treated accordingly.2 9 On the Protestant side, Calvin was one of the leading exponents of the idea that, in exceptional circumstances, there could be a just cause to rebel. Although Calvin, like Luther, held that, since the state was ordained by God, citizens had to accept it, he was in favour of a rebellion against tyranny as an extreme measure to be undertaken by lesser magistrates, (i.e., by peop.le in an official capacity), and not by private individuals. 3° The new interpretation of the Scripture suggested by Calvin was further developed by one of his early followers, John Knox. In particular, his argument shows that, although resorting to internal war (jus ad bellum internum) could be

27

Luther. M.,

'~

Open letter on the harsh book against the peasants", in Marrin,

A., (ed.), War and the Christian conscience:from Augustine to Martin Luther King, ]R, 28

29 30

Henry Regnery Company, Chicago 1971, pp. 101-107. (Emphasis added). Luther, M. "Secular authority: to what extent it may be obeyed", quoted in Ramsey, P., War and the Christian conscience: how shall modern war be conductedjustly?, Duke University Press, N.C. 199 6, p. II7. Ramsey, P., War and the Christian conscience: how shall modern war be conductedjustly?, pp.115-116. This also implied that Aquinas's requirement of competent authority started being potentially applicable to internal armed conflicts.

8

Chapter I

justified, in that it was the political authority to be regarded as "Satan" and not the civilian rebel, there was no suggestion of changing the rilles on the conduct of hostilities (jus in hello intern0). The fact that the earlier persecutors were now regarded as "Satan" and that the then persecuted were now entitled to wage war against their oppressors, did not bring any improvement in the conduct of hostilities. Rather, as Knox makes it clear, the rebellion, at least on the part of the "justified rebels", was, as before, subject to no limitations. "Well, Mr. Knox [...] yesterday we heard your judgement upon the 13th [chapter of the Epistle] to the Romans [...] but in two things I was offended [...] The one thing was, ye made difference betwixt the ordinance of God and the persons that were placed in authority; and ye affirmed that men might refuse the persons and not yet offend against God's ordinance. This is the one; the other [...] ye meant, that subjects were not bound to obey their princes if they commanded unlawful things; but that they might resist their princes, and were not ever bound to suffer" [ ] "My Lord said [Knox] the plain words of the Apostle make the difference [ ] the Apostle affirms that the ordinance of God, and the power given unto man, is one thing, and the person clad with the power or with the authority, is another; for God's ordinance is the conservation of mankind, the punishment ofvice [...] But men clad with the authority are commonly profane and unjust; yea, they are mutable and transitory, and subject to corruption [...] And now, my Lord, to answer to the place of the Apostle who affirms, 'That such as resists the power, resists the ordinance of God'; I say that [...] if men in the fear of God oppose themselves to the fury and blind rage of princes; for so they resist not God, but the Devil, who abuses the sword and authority of God" [...] "I know," said Lethington, "the idolater is commanded to die the death; but by whom?" "By the people of God," said the other; "for [...] a commandment is given, That if[...] idolatry beftund true, that then the whole body ofthe people shall arise and destroy that city, sparing in it neither man, woman, nor child. "3 I

Although this analysis of rebellion lasted until the nineteenth century,3 2 in the period after the end of the sixteenth century, the emerging concept of state sovereignty, alongside the emerging view that theologians should deal with moral questions rather than political ones, made religious thinking less important in shaping the law of internal armed conflict than earlier. This development is reflected in the statement of Gentili: Silete theologi in munere alieno (theologians should remain silent in questions not part of their area of interest). New factors started to have a direct effect in promoting the development ofinternational legal 3I

Knox,]., "The right ofrevolution in Scotland", in Marrin,A., ed., War andthe Christian conscience:fromAugustine to Martin Luther King,jR., pp. 108-111. (Emphasis added).

32

Sections 11.7 and 111.2 deal with the evolution of the Christian thinking on the subject-matter in the twentieth century.

1he Evolution

ofthe Concept ofNon-InternationalArmed Conflicts

9

rules, in particular the doctrine of natural law and the theory of state sovereignty, together with the work of international law jurists related to internal armed conflicts. This meant that sources taking a situation on the ground focus started to exist alongside sources focusing on sovereignty. 33 The Christian tradition, however, holding that every person has an innate value and that the Laws of God are above the secular authorities, helped shape the theory of natural law. It follows that the Christian tradition also indirectly helped shape the provisions related to internal armed conflicts, which, as mentioned above, have benefited from the doctrine of natural law. To understand how the theory of natural law affected the evolution of treaty law rules related to internal conflicts, it is first necessary to describe briefly this theory. 2.

The doctrine of natural law and the social contract theory

The theory of natural law, as developed in the XVII and XVIII centuries, held that, apart from the law of the state and the law of nations, there was another law, the law of nature, that embodied the unalterable and eternal principles ofjustice, which corresponded to what "is always good and equitable". The law of nature did not necessarily equate to the law of God. As Grotius made clear, natural law would, in fact, be valid even if God did not exist. The core of the doctrine of natural law supported the idea that "society must be made up of free individuals equal with each other [... J and subject only to the law, which, in turn, is and must be an expression ofthe general will; political institutions should exist only as a means of realizing the freedom of the individuals and their common good".34 The theory of natural rights posed a challenge to the established political authority in that a political regime was regarded as legitimated only as long as it satisfied the natural rights of its citizens. 35 Furthermore, as all men possessed certain rights 'by nature', the state not only had to respect such rights but also the state itself was subject to the law: "[1'] Etat de droit est bien l' etat des droits de l' homme" .3 6 33

34 35

If, in fact, at that time theologians were mostly concerned with the issue of temporal authority (as representative of God's authority), they were likely to have sovereignty concerns. Cassese, A., Human rights in a changing world, Polity Press, Cambridge 1990, p. 24. Sidorsky, D., "Contemporary reinterpretations of the concept of human rights", in Sidorsky, D., Liskofsky, S., and Shestack,]., (ed.), Essays on human rights: contemporary issues and]ewishperspectives, The Jewish Publication Society ofAmerica, Philadelphia 1979, p. 9 2 •

36

Vegleris, P., "Droit de l' homme and etat de droit" in La concezione del diritto e dello stato nell' era di rivendicazione della dignita della persona umana: atti del colloquio internazionale organizzato dalla Facolta di Scienze Politiche dell' Universita di Roma "La Sapienza': d'intesa con il Comitato Consultivo Italiano per i Diritti dell' Uomo (S.L O.L)

10

Chapter I

The characterisation of natural rights as a-principle oflegitimacy of a state is evident in the theory of the social contract. Although the social contract theory takes various forms, the essential elements of the social contract remain similar in all the authors,37 and consist in "a manifestation of individual will with the object of establishing a relationship of mutual obligation".3 8 Among the social contract authors, Locke gave the greatest contribution to the development of legal restraints upon governments. He theorized a state of nature in which human beings lived in a state of freedom and equality. In order to avoid certain inconveniences caused by the state of nature, Locke argued that they stipulated a contract to agree to set up a political body. In establishing the political authority, however, men did not give up their natural rights to life, liberty and property. Rather, since the political authority was established only for a better protection of these rights, the respect of such rights was a measure to evaluate the legitimacy of the government.3 9 Thus, having recognized that citizens were contracting members of the society in which they lived and that the political authority to which they were subjected derived from them and rested on their consent, the individual became the engine of the state. The law was made for the good of the individuals subject to it and the established government could no longer be held free from restraints in dealing with its own citizens. 40 As explained further below, the theory of natural rights did not put exceptions on the respect of individual rights. They were to be respected in all circumstances. 4I As such, they could represent a tremendous

37 38 39

40 4I

e l'Institut International des Droits de r Homme, Strashourg: Rome, 29-JI Ottobre I984, A. Giuffre editore, Milan 19 88, p. 29. D' Entreves, A.P., Natural law: an introduction to legal philosophy, Hutchinson University Library, London 1970, p. 59. Ibid. Although nowadays the theory of human rights "is not primarily that of serving as a principle of legitimacy within a [u.] national state [.u] but it has become part of an effort to develop standards of achievement with respect to citizens'rights within an international community", (Sidorsky, D., "Contemporary reinterpretations of the concept of human rights", p. 92), the principle of human rights still serves the scope of delegitimizing politically certain states at least at an internationa11evel. It follows that, if the government respects such rights during the fighting, it will keep its internationallegitimisation and it will make it difficult, for foreign governments, to intervene legally in its internal affairs. As J. Rawls puts it, human rights have the following functions: I) They are a necessary condition of a regime's legitimacy and of a decency of its legal order; 2) By being in place, they are also sufficient to exclude justified and forceful intervention by other peoples, say by economic sanctions, or in grave cases, by military force; 3) They set a limit on pluralism among peoples. Rawls, J., "The law of peoples"in Shute, S. and Hurley, S., (eds), On human rights: the Oxford amnesty lectures I993, Basic Books, New York 1993, p. 7L As discussed above, in fact, with the emerging theory of natural law, the state itself was subject to the law. See chapter 111.3.

'!he Evolution

ofthe Concept ofNon-International Armed Conflicts

II

force to push for the recognition of rights even during the conduct of hostilities in internal armed conflicts. Before explaining this key passage, it is necessary to analyse the relationship between the doctrine of natural law and revolutions. 3.

Natural rights, revolutions and the legitimisation ofpower

The conception of natural law, which held that sovereignty was in the hands of the people and governments were to be held accountable for their actions before their subjects, led the modern theory of natural law to become a vindication of rights and, possibly, a theory of revolution.42 The influence of natural rights and of the social contract theory appears evident in the Declarations of Rights that were born out of the American and French revolutions. The formula of the first article of the French Declaration of Rights of Man of 1789: "Men are born free and remain free and equal in rights", repeats, in fact, ]he Social Contract of Rousseau that, at the beginning, states that "man is born free". 431he influence of the theory of the social contract is also evident in the declaration of the French Constituent Assembly, which states that "the aim of every political association is the preservation of the natural and indefeasible rights of man".44 Similarly, the Pennsylvania Declaration of 1776 states that "the government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family or set of men, who are a part only of that community".45 In particular, the state was regarded to be "[...] a voluntary association of individuals [...] a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good".4 6 When the political authority did not respect the natural rights of individuals and was oppressive, citizens had the right to rebel as "the doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish and destructive of the good and happiness of mankind".47 42

43

44 45

46 47

D' Entreves, A.P., Natural law: an introduction to legalphilosophy, p. 60. 1he social contract continues, however, saying that the man is everywhere in chains. The social contract was the means to bring human beings back to a world in which they could live free and equal and enjoy their natural rights. In short, the social contract was an instrument to give expression to the general will. See Bobbio, N., the age ofrights, Polity Press, Cambridge 1996, pp. 82-83. The Pennsylvania Declaration, (1776), quoted in Cassese,A.,Human rights in a changing world, pp. 24-25. The preamble to the Massachusetts Declaration (1783), quoted in ibid., p. 25. Article IV of the Maryland declaration (1776), quoted in ibid. It is not clear, however, whether resistance as intended by such declarations means passive resistance or

12

Chapter I

Thus, according to the doctrine of natura1law, citizens could have the right to rebel and, possibly, to fight to achieve the respect of their rights. 1his, however, also implied that, whilstfighting, they kept the natural rights they werefightingfor and were required to respect the natural rights of their opponents. Although, in fact, a revolt against the established authority was an indication that the social contract was at stake, if the incumbent government fought against the insurgents to keep power, it meant that, according to the government authorities, the contract was still effective because it was only on the basis of the contract that the ruler could claim the authority to rule. Therefore, the conditions for its existence had to continue to be respected, among which only a limited use of public force. 48 A government that justified the suppression of the revolt as a necessary measure to continue to guarantee the enjoyment of the natural rights of its citizens could not violate such rights during a repression justified by the need to guarantee their respect. Rather, in order to retain or regain legitimacy, and to continue to rule, the government had to prove that it respected the natural rights of its citizens in all circumstances, even during the conduct ofhostilities. Similar considerations applied to fighting groups. Considering, in fact, that natural rights were to be respected at all times and by everyone ("no-one ought to harm another in his Life, Health, or Possessions"49), it would have been contradictory for the armed groups to violate natural rights during the fight to make the ruler respect them. Given this situation, it could be inferred that the passage from natural rights to be respected at all times and by everybody to the development of legal rules in non-international armed conflicts should have been natural and inevitable. The doctrine of natural law and the social contract theory, however, are known more as an inspiration for human rights law than as a source of rules for the conduct of armed conflicts, not least because one of the purposes of natural law was to avoid conflicts. The primary scope of the theory of natural law was to put limitations upon the exercise of the power, not to contest it. The creation of natural rights was seen as a way of avoiding resort to force and of securing the rights of a group

48

49

whether it also includes forcible resistance. As explained further below, reasons for different interpretations reside in the ambivalent nature of natural law, which played both a revolutionary and a conservative role. The use of public force was justified only as long as it was necessary to guarantee the enjoyment of natural rights. As the French Declaration puts it: "The guarantee ofthe rights of man and citizen necessitates a public force; such a force, therefore, is instituted for the advantage of all and not for the particular benefit of those to whom it is entrusted". Art. 12. Q!1oted in Ibid., p. 24. This is the fundamental law of nature as put by Locke. Q!1oted in Meron,T., Human rights in international law: legal andpolicy issues, Clarendon Press, Oxford 19 84, p. 75. (Emphasis added). It is to be noted, however, that citizens did not include all human beings in the jurisdiction, e.g. slaves.

The Evolution ofthe Concept ofNon-International Armed Conflicts "

13

outside the narrow circle of the aristocracy, which considered that it should share in the exercise of power. 50 Therefore, rebellion was seen as an extreme measure. As shown, however, by the analysis of the work of international law jurists, the considerations of humanity, which underlie the doctrine of natural law, remain extremely important for the evolution of the law of non-international armed conflicts. 51 The considerations of humanity derived from the theory of naturallaw52 represented a balance to the emerging theory of state sovereignty that, as developed in the sixteenth century, started to penetrate the conceptions regarding armed conflicts and to playa key, but negative role in shaping the international law of non-international armed conflicts. 4.

The theory of state sovereignty

In its modern meaning, the term sovereignty appears, together with that of state, at the end of the sixteenth century.53 According to the theory of state sovereignty, the political power was vested in only one body, the sovereign. This conception derives from the fact that, in order to abolish the medieval structures, many thinkers theorized the necessity of a political body characterized by the concentration of the use of force in a determined territory and upon a determined population in order to create unity and political cohesion.5 4 With the formation of territorial states and the concentration of power, the sovereign had the monopoly on the lawful resort to armed force, both in the internal and external sphere. The validity ofthe right to resistance to the monarch was challenged, since "to free the ruler from restraints was [regarded as] the lesser

50

51 52

53

54

The group was also characterized by the status or wealth of its members. PecesBarba, G., Teoria dei dirittifondamentali, A. Giuffre editore, Milan 1993, pp. 120-121. The ambivalent nature of natural law has been so described: "If natural law played a revolutionary part at certain epochs ofWestern history, it is equally true that, during most of its age-long development, the doctrine was limited to a mildly progressive, and at times to a frankly conservative function [... J Natura1law could serve as well to support revolutionary claims as to justify an existing legal order". D'Entreves, A.P., Natural law: an introduction to legalphilosophy, p. 93. See further below, sevtion 5. As already explained, natural law was profoundly influenced by the Christian doctrine. In this work, any reference to natural law from now on refers to natural law as influenced by the Christian doctrine and is not intended to suggest that the two are separate influences. In the following discussion the theory of state sovereignty is analysed as it developed from the sixteen century to the eighteenth century. For the subsequent evolution of the theory, see further below, chapter II. See Bobbio, N., Matteucci, N., Pasquino, G., Dizionario di Politica, UTET, Turin 1983, pp. IIOO-n02.

14

C

Chapter I

evil in the light of the pressing need for order".55The internal sovereignty, however, continued to be progressively limited with the formation of constitutional states and the progressive "positivisation" of natural law. By contrast, in the external sphere, in the relations with other states, the state was regarded as absolute. The ruler was regarded as the only authority legitimated to take decisions regarding peace and war. Furthermore, since states did not recognize any superior secular authority (superior non recognoscens), they tended to regulate their controversies by resort to force, which was progressively regulated by a system of law called ius publicum europaeum. The international relations implied, therefore, a system of equal states with an absolute potestas. 56 The implications of this system on the development of rules of warfare in non-international armed conflicts are evident considering that, following this conception of the state, the sovereign, in dealing with internal armed conflicts, was considered to be free. In particular, since states were regarded as equal with an absolute potestas, the regulation of non-international armed conflicts did not fall within the interest of international law as this interest would have implied interference in the internal affairs of an absolute subject. The only wars which received the interest ofjurists were the so-called public wars, that is, wars between independent states. 57 The view that only international wars were to be treated as wars is evident in the work of the early international law jurists; the regulation of internal armed conflicts was, in fact, not part of their legal concern. The argument was only discussed in order to stress that such conflicts had not the status of proper wars and, therefore, the traditional rules of war could not be applicable to them. Rather, most international law jurists, especially those whose work was affected by the theory ofjust war,5 8 did not even argue that, in such circumstances, other rules of law, (natural law), could apply to limit the power of the sovereign in suppressing internal conflicts. Only at a later stage, in particular with Vattel, was it clearly stressed that considerations of humanity should also apply during non-international armed conflicts. Even in the work ofVattel, however, the theory of state sovereignty played a key role and he did not challenge the power ofstates to regulate internal armed conflicts, unless the internal conflict could be considered an international war. The theory of state sovereignty, as articulated in the work of the early international law jurists, is dealt with extensively as it has affected the evolution and the application of international law provisions of internal armed conflicts for 55

56 57

58

Hinsley, F.H., Sovereignty, C.A. Watts, London 1966, p. 126. Ferrajoli, L., La sovranita net mondo moderno, Laterza, Bari 1997, p. 9. In addition, however, in exceptional circumstances, some non-international armed conflicts may have been regarded as public wars. See further below the thinking of Vatte! and the discussion, in the next chapter, on recognition of belligerency. See supra, section 1.

]he Evolution ofthe Concept ofNon-International Armed Conflicts

15

many years. Furthermore, it also shows the interaction between natural (human) rights and the law of war and the implications of a full application of natural (human) rights during non-international armed conflicts. It is noteworthy that the implications of the relationship between human rights and the law of war have only recently started to be fully exploited through the use of the human rights machinery in coping with violations of the rules of law applicable in noninternational armed conflicts. 59 5.

Non-international armed conflicts in the work ofthe early international law jurists: Vitoria, Ayala, Grotius, Gentili, and Vattel

In the following section the work ofthe most representative early jurists of international law is analysed. This analysis makes it evident, on the one hand, how the considerations of humanity, derived from natura1law, pushed for the recognition of rights even during internal armed conflicts and, on the other hand, how the emerging theory of state sovereignty created a barrier to the embodiment of such principles in law texts relating to non-international armed conflicts. Vitoria. Francisco de Vitoria, (1486-1546), is one of the few early international law jurists who used natural law to shape his view ofthe rules oflaw applicable to the conduct of hostilities. As, however, he followed Augustine and Thomas Aquinas on the conditions to have a just war, his considerations of humanity could not easily be held applicable to internal armed conflicts. On the other hand, at that time the distinction between internal and international wars was not clear yet. As regards his thinking, suffice it to mention that he claimed that punishment against the civilian population could take place only if strict military necessity so required and that, in war, the killing of innocents was prohibited by natural law. 60 Ayala. Ayala, (1548-1584), a Spanish international lawyer writing in the second half of the sixteenth century, illustrated the implications that the just war tradition and the concepts of state sovereignty had on the evolution of the rules regulating internal armed conflicts in his books on the law ofwar. In particular, Ayala held that a war against rebels was a most just cause of war since rebels committed an injury against God, from Whom all power was derived. Therefore, the laws ofwar should not cover the acts of the rebels; rather, since rebellion against the prince was comparable to heresy, rebels were to be treated like infidels. 6I

59 60 6r

See further below, chapter 111.3. See Hartigan, R. S., theforgotten victim: a history ofthe civilian, p. 87. "Disobedience on the part of subjects and rebellion against the prince is treated as heinous offence and put on a par with heresy, and the disobedient offender is called

r6

Chapter I

Ayala claimed that "the best way to keep rebels in their duty was to deal with them in such a way that they could not rebel again, for so long as wrong-minded persons have the opportunity of doing wrong they will want to do it". 62 Following the Christian tradition, Ayala held that, as a rebellion lacked all the essential elements ofa just war, a repression without restraints was recommended as an exemplary measure not to make rebels revolt again against their political authorities. In the work of the Spanish jurist, the term sovereignty also started to appear, but only in order to remark that an attack on the sovereignty ofthe prince allowed a response, which was to be considered "a most just cause of war". In combining concepts of the just war theory and of the emerging theory of state sovereignty, Ayala supported the view that the laws of war were not to be applied to rebels as they could not be considered proper "enemies". The passage of Ayala that deals with jus in bello interno is worth quoting in full as it encompasses concepts that have shaped the further development of the international law of internal armed conflicts: "Now in order that a war may be styled just, it ought in the first place to be declared and undertaken under the authority and warrant of a sovereign prince, in whose hands is the arbitrament of peace and war. For a private person has no business to begin a war, seeing that he can and ought to , assert his right in the courts [...] Nor is anyone competent to initiate any variety of hostile activity without the knowledge and counsel of the prince [00'] There are occasions, however, when, e.g., pressing necessity or the absence of the prince, coupled with the hazards of delay, may justify a commencement ofwar even without his sanction [00'] And this [...] is especially so in dealing with rebels, for everyone not only may, but must, foil their attempts without waiting for the prince's command, should delay be perilous [00'] Beside this, war may not be made save for just and necessary cause [...] And then a prince has a mostjust cause oj war when he in directing arms against rebels and subjects who abjure his sovereignty;for it is a heinous offense, against both God and the prince, for subjects to resist his authority, allpower beingfrom God alone; and St. Paul tells us "whosoever resisteth the power, resisteth the ordinance of God" ['00] Now rebels ought not be classed as enemies, the two being quite distinct, and so it is more correct to term the armed contention with rebel subjects execution oflegalprocess, orprosecution, and not war [...] For the same re.ason, the laws ofwar and of captivity and ofpostliminy, which apply to enemies, do not apply to rebels, any more that they apply to pirates and robbers (these not being included in the term "enemy" [hostes])' Our meaning is that these persons themselves

an infidel". Ayala, B., 7hree books on the law ofwar and on the duties connected with war and on military discipline, (Book I, Chapter II), Scott, J.B., Ced.), The classics ofinternational law, Carnegie Institution of Washington, Washington, D.C. 1912, p. 16. See supra, section I and chapter 111.2.

62

Ibid., p. 13.

]he Evolution ofthe Concept ofNon-International Armed Conflicts

17

cannotproceed under the laws ofwar and so, e.g., they do not acquire the ownership of what they capture, this only being admitted in the case ofenemies [hostes}; but all the modes of stress known to the laws of war may be employed against them, even more than in case ofenemies, for the rebel and the robber merit severer reprobation than an enemy who is carrying on a regular andjust war and their condition ought not to be better than his."63

Since in the work ofAyala theological considerations were predominant, the role ofnatural law as an inspiration to respect principles ofhumanity in dealing with a non-international armed conflict is not evident. By contrast, a timid contribution of natural law to the development of rules of warfare in internal armed conflicts can be read in Grotius, who, in fact, distinguished natural law from the law of God and gave it a human origin. Grotius. Grotius, (1583 - 1645), described the old division of war into public and private in his work on ]he rights of war and peace. In particular, he first distinguished war from the resort to force by private individuals for the redress of grievances and then differentiated formal and informal wars. "The first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons."6 4

Although, Grotius held that not "all private war is [...] made repugnant to the law of nature by the erection of legal tribunals [... since] there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open", 65 he did not discuss how such wars should be conducted. In the following passage, however, discussing public wars, he stressed that wars, in order to be public, were to be waged both by sovereign powers and according to the Rites and Formalities required by the Law of Nations, that is to say according to the restraints imposed by the law of war. When public wars lacked one of these requirements, they were called less solemn and could be waged against private men: "Public war, according to the law of nations, is either solemn, that is formal, or less solemn, that is informal. The name of lawful war is commonly given to what is here called formal [...] Now to give a war the formality required by the

63 64

Ibid., pp. 9-12. (Emphasis added).

Grotius, H., 1he rights ofwar andpeace (Book I), M. Walter Dunne, London 1979, pp.

55-56. 65

Ibid.,

p. 56.

I8

Chapter I law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both ofwhich are so essential that one is insufficient without the other. Now apublic war, less solemn, may be made without thoseformalities, even againstprivate persons, and by any magistrate whatever. "66

Even if "the passage may be read to indicate that war internal to a nation, war against rebels, is not limited by international "Rites and Formalities" and so may be prosecuted unlimitedly this conclusion is not a necessary one".67 In particular,]ohnson argues that, since Grotius tried to build a moral floor, even the wars against rebels, that is to say the "less solemn" wars, were to be limited by natural law. Moreover, he holds that the incumbents and the rebels could agree to set up further limitations. 68 It is noteworthy that this interpretation, implying that natural law (and, therefore, also natural rights) continued to be applicable even during an internal conflict, supports the above mentioned thesis that the theory of natural law was important not only to the development of international human rights law but also to the development of rules of law applicable in non-international armed conflicts. Grotius, holding that there was a common right that could be claimed by every person by virtue of being human, did not make the emerging theory of state sovereignty preclude the possibility of international law regulating internal armed conflicts. Between the doctrines of natural law and state sovereignty he left room for the former to shape the evolution of the law relating to internal armed conflicts.

Gentili. Gentili, (I552-1608), is generally thought to have been more precise than Grotius in dealing with the character and aim of war,6 9 which, according to the Italian jurist, is to be defined as ''publicorum armorum iusta contentia". War required three conditions for its existence: I) It was to be a public coq.test between sovereign powers; 2) It required force of arms; 3) The hostilities were to be conducted in accordance with the law established and adopted by both belligerents. His research to define the characteristics ofwar did not bring him to investigate the justness of the causes ofwar, as Grotius did. The scope of his research was mainly devoted to

66 Ibid. P.57. (Emphasis added). 67 Johnson, J.T., Ideology, reason, and the limitation of war, religious and secular concepts I200-I740, Princeton University Press, Princeton 1975, p. 213. 68 Ibid. 69 Gentili, A., The three books on the law of war, Scott, J.B., (ed.), The classics of internationallaw, Carnegie Endowment for International Peace, Washington D.C. 1933, pp. 32a-33 a.

1he Evolution ofthe Concept ofNon-International Armed Conflicts

19

distinguishing warfare that was regular from the acts of pirates and insurgents.?o He analysed the question exclusively on a juridical basis,?! without specifically referring to any particular source for his view of the law. 7 According to Gentili, a war was regular only when it was fought by sovereign authorities, which were regarded as "respublicae perfectae" having absolute power on the international scene.?3 As internal wars were not "regular" in that the rebel side could not be regarded as a "sovereign authority", they did not fall within the sphere ofinterest of the developing international law ofwar. In particular, Gentili justified the lack of rights to be accorded to insurgents stating that, since rebels voluntarily withdrew from the human community,?4 they also gave up the rights conceded by the human institutions: 2

"A state of war cannot exist with pirates and robbers [...] One who is a subject does not by rebellion free himself from subjection to the law [...] There is also another reason why such men do not come under the law of war; namely, because that law is derived from the law of nations, and malefactors do not enjoy the privileges of a law to which they are foes. How can a law, which is nothing but an agreement and a compact, extend to those who have withdrawn from the agreement and broken the treaty of the human race [...] Hotman is wrong too in asserting that the law of nations is extended to those who have revolted. For as to what Paulus seems to assert, that those who have revolted are enemies to the extent of losing their citizenship, he surely was not [...] giving them the benefit of a new law [...] With pirates and brigands [...] no laws remain in force [...] those who do not have a [public causelare not properly enemies, even although they conduct themselves as soldiers and commanders and meet the attack ofcommanders and opposing legions. He is an enemy who has a state, a senate, a treasury, united and harmonious citizens [...] For the word hostis, 'enemy: while it implies equality, like the word 'war' [...] is sometimes extended to those who are not equal, namely, to

70 71 72

73 74

Ibid. Gentili clearly stated that the justness of a war depended only on formal basis, in particular, on the legitimacy and sufficiency of the alleged causes. Ibid. "Gentili, while recognizing that principles of ethics and religion cannot altogether be banished from the consideration and regulation of human conduct, whether in the case of individuals or in that of organized communities, nevertheless did much to place the whole question on a juridical basis, so that the governing criterion might more fittingly be derived from acceptable principles of international law". Ibid., p. 33 a. Ferrajoli, L., La sovranita nel mondo moderno, p. 17. In particular, Gentili held that pirates and robbers, (to whom, according to Gentili, rebels should be assimilated with regard to the treatment), "through their misconduct emancipated themselves from jurisdiction". Gentili, A. 1he three books on the law of war, (Book I, Chapter IV), p.22. See also further below, chapters 11.8 and IV. I.

20

Chapter I pirates, proscribed persons and rebels; nevertheless it cannot confer the rights due to enemies, properly so called, and the privileges of regular warfare. "7 5

Vallel. With Vattel (1714-1767), the influence of the conflicting concepts derived from the theory of state sovereignty and the doctrine of natural law on the development of rules regulating internal conflicts becomes fully evident. On the one hand, Vattel, following the theory of state sovereignty, held that international law concerned itself only with sovereign, independent states and that, since an internal uprising challenged the sovereignty of the state, it was to be considered as the worst evil for an independent body. In particular, he considered non-international armed conflicts to be crimes even when based upon just grounds of complaint, as the resort to violence is forbidden in a civil society. As such, according to Vattel, (apart from the exceptional situation of civil war), the sovereign was not obliged to respect the law of war in dealing with rebels. On the other hand, following the considerations of humanity derived from the theory of natural law, he recommended states to use mercy toward those who had a just cause to rebel. In particular, he invited political authorities to be "just", "clement", and "merciful" in suppressing a revolt. Similarly, when he condemned the complete extermination of rebels and exhorted the sovereign not to allow the concept of necessity to justify unlimited measures against rebels, he was prompted by the considerations of humanity developed by the natural law tradition. According to Vattel, in fact, "no agreement can bind, or even authorize, a man to violate the natural law. [... N]o one should obey commands which are clearly contrary to that sacred law"J6 The reasons given by Vattel not to conduct an unlimited repression during internal revolts are striking: if nowadays military strategists kept in mind his words during the conduct of hostilities in internal armed conflicts needless deaths would be avoided. Vattel advised the sovereign to use "gentle" means to quell the revolt in order not to endanger the state, since despair caused by unlimited repression strengthens the resistance ofthe rebels and brings them sympathy that will help them and will increase their number)7 It is also remarkable that Vattel suggested that the sovereign should grant an amnesty to the greatest pos-

75 76

77

Ibid., pp.22-25. (Emphasis added). Vattel, E., 1he law of nations and the principles of natural law, (Book III, Chapter XVIII), Scott, lB., (ed.), 1he classics of international law, Carnegie Institution of Washington, Washington, D.C. 1916, p. 25. See also further below, text accompanying footnote I09. Ibid., p. 337. As will be seen further below, in chapter III.I, similar considerations are also made by the makers of military strategy. Here Vattel refers to an internal armed conflict, which has not reached the level of a full-scale civil war.

'Ihe Evolution ofthe Concept ofNon-International Armed Conflicts

21

sible number of rebels after the conflict, as an amnesty might be the only realistic measure to save the state from further revoltsJ 8 "It is a much-discussed question whether the sovereign must observe the ordinary law of war in dealing with rebellious who have openly taken up arms against him [...] The name of rebels is given to all subjects who unjustly79 take up arms against the ruler of the society [...] A popular tumult is a disorderly gathering ofpeople who refuse to listen to the voice of their superiors, whether they be disaffected towards their superiors themselves or merely towards certain individuals [...] If the anger of the people is directed particularly against the magistrates or other officers invested with the public authority, and if it is carried so far as to result in positive disobedience or acts of violence, the movement is called sedition. so And when the evil extends and wins over the majority of the citizens in a town or province, and gains such strength that the sovereign is no longer obeyed, it is usual to distinguish such an uprising more particularly by the name of an insurrection. All these acts of violence disturb the public order and are crimes against the State, even when they are based upon just grounds of complaint, for violent measures are forbidden in civil society; [... J Every citizen should suffer patiently evils that are not unendurable rather than disturb the public peace. It is only a denial ofjustice on the part of the sovereign, or deliberate delays, that can excuse the violence of a people whose patience is exhausted, and can even justify it, if the evils are intolerable and the oppression great and manifest. 8 1 But how is the sovereign to treat the insurgents? I answer, in general in the manner that is at once most in accord with justice and conducive to welfare of the State. If he must suppress those who unnecessarily disturb the public peace, he should show clemency towards the unfortunate persons who havejust grievances and whose only crime is that ofhaving undertaken to obtainjusticefor themselves [...] Subjects who rise up against their prince without cause deserve the severest punishment. But [...] certain forms ofpunishment, however just in themselves, become cruelty when extended to

78

79

80

81

Ibid. See also further below, chapter IV.I. for a discussion of Protocol II that, at art.

6.5, states that "at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty". According to Vattel, the subjects could rebel their prince when the evil caused by the ruler rose to such a point that it was better to expose themselves to a civil war than to endure it. Ibid., (Book I, Chapter IV), p. 25. It is noteworthy that Vattel describes a revolt using the same term as Aquinas. This wording resembles both the thinking of the Christian tradition, (see supra, section r), and the Preamble of the Universal Declaration of Human Rights where it is stated that "if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, [... J human rights should be protected by the rule of law". Ghandhi, P.R., International human rights documents, Blackstone Press Limited, London 2000.

22

Chapter I too great a number ofpersons [...] we should still remember with horror the Duke of Alva, who boasted of having caused twenty thousand heads to fall under the axe of the executioner. Let not his bloody imitators hope to justify their excesses on the plea of necessity."82

Although these considerations of humanity8 3 might suggest that Vattel pushed for the recognition of rights and obligations during internal armed conflicts, Vattel maintained that only in the case of full-scale civil war, should rebels be accorded the privileges of the laws of war, if the level of their organization and extent of their control meant that they could be equated to a state. According to Vattel, only when internal armed conflicts gave rise to two independent parties could they be called civil wars 84 and the laws of war could be held applicable. That is to say that only when the rebel side set up a quasi state organization, could the rules of war apply. The laws of war were, therefore, to be applied not to internal armed conflicts as such, but only to internal armed conflicts that, on account of the organization of the parties, resembled international wars. This is because rebels with a state organization could be treated as representing another state and, therefore, they could be regarded as justi hastes. In short, to be covered by international law, the civil conflict was to be of such a high intensity as to look like an international war. "When a party is formed within the state which ceases to obey the sovereign and is strong enough to make a stand against him, or when a Republic is divided into two opposite factions, and both sides take up arms, there exists a civil war

[...] The sovereign never fails to stigmatize as rebels all subjects who openly resist his authority; but when the latter become sufficiendy strong to make a stand against him, and to force him to make formal war upon them, he must necessarily submit to have the context called civil war [...] Civil war breaks the bonds

oj society and ofgovernment... it gives rise to two independent parties, who regard each other as enemies and acknowledge no commonjudge. Ofnecessity, therefore, these two parties must be regarded as forming [...] two distinct Nations [...] 1hat being

82

83

84

Vattel, E., 1he law of nations and the principles of natural law, (Book III, Chapter XVIII), pp. 336-337. (Emphasis added). In a different context so Vattel urges to ease the sufferings that come from the war: "Let us never forget that our enemies are men. Although we may be under the unfortunate necessity of prosecuting our rights by force of arms, let us never put aside the ties of charity which bind us to the whole human race. In this way we shall defend courageously the rights of our country, without violating those of humanity". Ibid., p. xxii. See further below chapter 11.1 as regards the theory of recognition of belligerency and chapter IV.I. as regards the discussion of Protocol II Additional to the Geneva Conventions of I949, which requires a high threshold for its applicability.

7he Evolution ofthe Concept ofNon-International Armed Conflicts

23

so, it is perfectly clear that the established laws ofwar [...] should be observed on both sides in a civil war."8 5

Following Vattel, further developments of international law led to the doctrine of recognition of belligerency, which reaffirmed that since wars were to be regarded as an affair between sovereign parties, in order to apply the law of war, the fighting parties should resemble two different nations. By contrast, it is noteworthy that the people most involved during the conduct of hostilities, the military, since early times have held that, in all circumstances, self-imposed restraints play an important role in winning an armed conflict. In particular, it is interesting to note that whilst those who analysed from one angle or another the issue of authority or sovereignty took a broadly similar line with regard to the regulation of non-international armed conflicts, the makers of military strategy, who had to do the fighting, seemed to start from the equality of belligerents. 86 This suggests a tension between the politicaVlegaV philosophicaVtheological approach and what was needed on the ground. 6.

The view ofthe makers ofmilitary strategy in early times

Although history is full of riots and revolutions, military literature regarding the conduct ofhostilities in internal armed conflicts is very scarce. There is, in fact, very little systematic writing on the use of force to respond to armed rebellion before 1945. There are only few ideas scattered in essays dealing with international wars. Systematic theories on this topic can be found only after World War 11. 87 It is very difficult to find a systematic theory for the conduct of hostilities in internal armed conflicts as "revolutionary wars themselves are episodes, with little to institutionalize them effectively as bodies of thought and experience [...] Revolutions are carried on in an atmosphere of secrecy, betrayal and deception. Archival records are few, and survivors who write memoirs are seldom trustworthy".88 Whatever the difficulties in dealing with an internal war, it remains, however, true that the necessity of keeping the support of the civilian population during the conduct of hostilities has been generally recognized even in ancient military writings. 89

85 86 87 88 89

Vattel, E., the law oj nations and the principles oj natural law, (Book III, Chapter XVIII), p. 338. (Emphasis added). See also further below, chapter 111.1. See further below, chapter III. Shy,]. and Collier, T.W., Revolutionary war, in Paret, P., (ed.), Makers ojmodern strategy:from Machiavelli to the nuclear age, Clarendon Press, Oxford 1986, p. 818. Nowadays the support of the civilian population has become essential to win an internal armed conflict. See further below, chapter 111.1.

24

Chapter I

Sun Tzu and other ancient codes. On this issue, the work of Sun Tzu, the art ofwar, is illustrative. 90 In particular, the author, in discussing the maintenance of a fighting army, expresses his concern that, due to war contributions, the civilian population could be impoverished and, as a result, create problems for the conduct of war, during which its support is regarded as a key-factor. According to Sun Tzu, "when one treats the people with benevolence, justice, and righteousness, and reposes confidence in them, the army will be united in mind and all will be happy to serve their leaders".9 In an internal war, the treatment of the population is extremely important, as, if the government fails to treat an armed rebellion with self-imposed limitations, it risks creating adverse feelings in the army that, having family and friends in the civilian population, could find itself unable to respond adequately to the insurrection. Furthermore, a government policy that asks the army to commit atrocities could induce members of the army to side with the dissident groups and could alienate the support of civilians. A state's claim to loyalty is based, in fact, on protection. If the state acts like the rebels and causes distress to the civilian population, the civilian population has no more reason to support the government than the rebels. Finally, Sun Tzu suggests that, in an armed conflict "the best thing of all is to take the enemy's country whole and intact".9 The principle would appear equally applicable in non-international armed conflicts, where the fighters have even less reason to destroy their own country. Humanitarian considerations can also be found in the Indian epic Mahabharata, (400 Be), which contains not only provisions prohibiting the killing of a surrendered adversary and the use of certain means of combat, (such as poisoned or burning arrows), but also provisions for the protection of enemy property and prisoners of war. Similarly, the Code of Manu, (200 Be), contains rules both prohibiting the use of treacherous weapons and the killing of unarmed soldiers and non-combatants. 93 I

2

Churchyard: the voice of experience. As regards specific writings addressing the methods to be used to repress a rebellion, it is worth quoting a passage ofThomas Churchyard (I520?-I604), which deals with the subject-matter.

90 9!

92 93

Sun Tzu lived in the 6th century Be. Sun Tzu, The art of war, in Handel, M.l., Masters of war: Sun Tzu, Clausewitz and ]omini, Frank Class, London !992, p.66. Sun Tzu, The art ofwar, in Phillips, T.R., (ed.), Roots ofstrategy, a collection ofmilitary classics,]ohn Lane, London 1943, P.I3. As shown further below, in chapter IIl.r.r., military strategists still consider restraints on war important during the conduct of hostilities in non-international armed conflicts.

1he Evolution ofthe Concept ofNon-International Armed Conflicts

25

Churchyard was an "English writer who won brief fame through his occasional verse, pamphlets on wartime experiences [...] and historical and antiquarian works".94 As regards his wartime experience he fought, mostly as a mercenary, for 30 years in Scotland, Ireland, the Low Countries, and France. 95 The wording of Churchyard in addressing the conduct of hostilities not only suggests that chivalrous concepts did not penetrate the conduct of hostilities in internal armed conflicts, but also anticipates military tactics that are being used today in dealing with internal revolts. Specifically, in relation to internal revolts, Churchyard makes reference to the strategy of organized armed groups in using the civilian population as a "sea" in which they swim like "fish" and to the counterinsurgency strategy of attacking the whole "sea" without distinguishing between combatant and non-combatants in order to defeat the armed violence. 96 In particular, Churchyard affirmed that "[T]he men of warre could not be maintained, without their Churles, and Calliackes, or women, who milked their Creates, and provided their victualles, and other necessaries. So that the killing ofthem by the sworde, was the waie to kill the menne of warre byfamine, who byflight oftentymes saved them selves from the dinte ofthe sword'. 97

Chivalry. Most ofthe customary laws ofwar, which developed in early times, such as the code of chivalry, applied only to parties that were regarded as "equal". 98 Therefore, although the medieval tradition of chivalry contributed to the development ofnon-combatant immunity in inter-state wars,99 it could not prove useful when the fighting parties were unequal. Since "medieval knights, at least in legend, fought each other on roughly equal terms, one on one, with similar

94

"Churchyard, Thomas", Encyclopaedia Britannica Online.

95

Ibid.

96 97

See further below, chapter IILI. Churchyard, T., ''A general rehearsall ofwarres, called churchyardes choice", London 1579, quoted in Johnson, J.T., Ideology, reason, and the limitation of war. religious and secular concepts I200-I740, p.I42. (Emphasis added). It is noteworthy to remark that "[h]is venom against them [rebels] flows entirely from the fact that they are rebels".

98

An armed knight could, in fact, only fight a person who was both a knight and armed. Furthermore, the code of chivalry only applied between Christian knights. It did not, for example, apply during the crusades, between Christian princes and infidels. See Greenwood, C., "Historical development and legal basis", in Fleck, D., (ed.), 1he handbook of humanitarian law in armed conflict, Oxford University Press, Ney York 1995, pp. 14-15. The virtuous knight was required to respect non-combatants, since it was contrary to chivalrous virtues to kill unarmed people. Lackey, D.P., 1he ethics ofwar andpeace, Prentice Hall, Englewood Cliffs, NJ 19 89, p. 65.

Ibid.

99

26

Chapter I

equipment",IOO and since chivalrous rules did not even apply to those who did not belong to the military classes,IoI it was extremely difficult to translate chivalrous concepts in a different context. As such, they could not represent a restraining factor when knights, at the service of their lord, were called to suppress an internal uprising. 102

Honour. A change in the conceptions regarding the conduct of hostilities in non-international armed conflicts started emerging only later on, when chivalrous concepts were replaced by the concept of honour. Although the concept of honour, like the code of chivalry, was, in fact, based on personal grounds, the sovereign was supposed to recognize it. This is because the concept of honour was broader than chivalry and it involved theories regarding the form of government, as appears in De l' esprzt des lois I03 of Montesquieu. In particular, according to Montesquieu "1' honneur fait mouvoir toutes Ie parties du corps politique; illes lie par son action meme; et i1 se trouve que chacun va au bien commun, croyant aller a ses interets particuliers. I04 [ . . . J L' honneur, inconnu aux Etats despotiques, OU meme souvent on n' a pas de mot pour l' exprimer, regne dans les monarchies; il y donne la vie a tout Ie corps politique, aux lois et aux vertus meme". 105

The influence of the concept of honour in shaping the actions of fighters is well illustrated by the following passage: 100 Ibid. 101 Chivalry was basically ajus militare confined to those who followed the military call-

ing. Draper, G .LA.D., "Wars of national liberation and war criminality" in Howard, M., (ed.), Restraints on war, Oxford University Press, Oxford 1979, p. 134. 102 Furthermore, it can be argued that chivalry soon became national chivalry, that is to say the instrument to serve the interest of a state and of its ruler: it was "quintessentially bellicose, setting the fighting man on a pinnacle of honour". Keen, M., Nobles, knights and men-at-arms in the middle ages, The Hambledon Press, London 1996, p.I8. Military writers, however, to remark how much the conduct of hostilities has changed since then, often recall the "chivalrous fights" with nostalgia as the following considerations ofJomini (1779-1869) show: ''As a soldier, preferring loyal and chivalrous warfare to organized assassination, if it be necessary to make a choice, I acknowledge that my prejudices are in favor of the good old times when the French and the English Guards courteously invited each other to fire first - as at Fontenoy - preferring them to the frightful epoch when priests, women, and children throughout Spain plotted the murder of isolated soldiers". Jomini, the art of war, quoted in Handel, M.L, Masters ofwar: Sun Tzu, Clausewitz and]omini, p. 74. r03 Montesquieu, C., De l' esprit des lois, Librairie de firmin-didot et C., Paris r894. De l' esprit des lois, was first published in 1748. 104 Ibid., 111.7·, p. 24. 105 Ibid., 111.8., p. 24.

The Evolution

ofthe Concept ofNon-InternationalArmed Conflicts

27

"II ri ya rien dans la monarchie que les lois, la religion et l' honneur prescrivent tant que l' obeissance aux volontes du prince: mais cet honneur nous dicte que Ie prince ne doitjamais nous prescrire une action qui nous dishonore, parce qu' elle nous rendroit incapables de Ie servir'. 106

This means that the sovereign could not order actions that would be regarded as dishonourable, such as committing atrocities during the conduct of hostilities. In this case, the sense of honour would prohibit soldiers from obeying dishonourable orders. 1°7 To give an example of legitimate resistance to the government, based on the sense of honour, Montesquieu quotes the disobedience of the governors of towns who refused to carry out the orders of Charles IX on St. Bartholomew's day.108 It is illustrative that the same example is used by Vattel for the same purpose, i.e., to show that the obedience which the subjects owe to the sovereign "ought not to be absolutely blind", as it cannot violate natural law and the sense of honour. In particular, Vattel states that "all authors who have any conscience or sense of honor agree that no one should obey commands which are clearly contrary to that sacred law". 9 Later on the ideas embodied in the chivalric code and in the concept of honour "produced corresponding bodies of customs and conventions [... ] which, first, did much to make war less dangerous to the war-minded, and, second, incidentally, did something to make it less damaging to the non-combatants".llo It should, therefore, be no surprise that the first modern codification of the law ofwar applicable to non-international armed conflicts was encompassed in a military manual- the Lieber Code - which will be dealt with in the next chapter. Furthermore, this also shows that, as regards internal armed conflicts, when the focus was on what was needed on the ground, the formation of rules was likely to proceed. 10

Ibid., IV.2., p. 29. (Emphasis added). 107 An echo of the concept of honour is embodied in article 21(2) of the Geneva Convention relating to the treatment of prisoners of war of 1949 in which it is stated that "prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend". 108 In particular, the order asked to massacre the Huguenots. 109 Vattel, E., ]be law of nations and the principles of natural law, (Book I, Chapter IV, p. 25). This is the description of those facts, as reported by Vattel: '''Sire', wrote the brave d' Orte, commander at Bayonne, 'I have communicated your Majesty's order to the loyal inhabitants and soldiers of the garrison; I have found there only good citizens and brave soldiers, but not a single executioner. For this reason both they and I humbly supplicate your Majesty to be pleased to employ our strength and our lives in things possible of fulfilment, and however hazardous they be we will expend ourselves in them to the last drop of our blood"'. Ibid. 1I0 Best, G., Humanity in warfare, Methuen, London 1980, p. 60.

106

Chapter II From the Lieber Code to the Drafting of Common Article 3 of the Geneva Conventions: The Rise of International Law Concern

In the next few sections the key elements, which have played an important role in the development of the rules of law in non-international armed conflicts, and, in particular, before and during the drafting of Common Article 3 to the Geneva Conventions are analysed. In particular, attention is paid to the impact on the development of the rules of law in internal armed conflicts of: I) the theory of recognition of belligerency; 2) the Lieber code; 3) the creation of the International Committee of the Red Cross (ICRC); 4) the events of the Spanish civil war; 5) the evolution of the principle of state sovereignty; 6) the human rights movement and 7) developments in the Christian tradition. Finally, Common Article 3 to the Geneva Convention of 1949 is examined against this background.

I.

The theory ofrecognition ofbelligerency

As mentioned in the previous chapter, the theory of state sovereignty and the theories ofwar, as developed by the early jurists of international law, gave rise to the theory of recognition of belligerency. This theory was clearly shaped by the conception that states were the only subjects of international law and that they were the only proper enemies in a war. In particular, since a war was supposed to take place only between two independent states, internal armed conflicts did not fall within the definition of war. For insurgents to be recognized as a "belligerent party", certain requirements had to be fulfilled,2 which would require the rebels to have a sort of state organization. I

2

See, in particular, the work of Vattel. See Lauterpacht, H., Recognition in international law, Cambridge University Press, Cambridge 1947, p. 176. These requirements resemble, at least to some extent, the conditions for the recognition of a militia as combatants in international armed conflicts. See art. I of the Annex to the I907 Hague Convention IV Respecting the Laws and Customs of War on Land, which, for the application of the laws, rights and duties of war to militia and volunteer corps, requires that such belligerents fulfil the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.

30

Chapter II

According to the theory of belligerency, a war that took place within the boundaries of the state could be regarded as a war, "in the technical meaning of the term",3 only by recognizing the insurgents as a belligerent Power. Thus, the recognition of belligerency was necessary in order to treat organized armed groups as subjects of international law and for the conflict in question to be subject to the laws of war. 4 Whilst the lawful government could "exercise belligerent rights at its option", 5 outside states, in order to get the benefits of neutrality law, might be required to recognize belligerency in another state. As explained by Lauterpacht: "In the case of civil war the duty of non-interference follows from the obligation to respect the independence of the State affected by the civil war. That independence would be denied if the ordinary obligations of neutrality were to be disregarded. However, it is only in consequence of the recognition of belligerency that these obligations come, in law, into being. For this reason the refusal [...] to recognize the insurgents as belligerent may [...] amount in fact to a denial of the independence of the state concerned"_6

However, even if outside states could find themselves in a position of needing to rec<;>gnize belligerency, such recognition has occurred rarely in international law. On the one hand, the incumbent government was usually reluctant to concede it as it claimed that recognition advantaged the insurgents. On the other hand, as noted by Lauterpacht, it was very difficult for civil wars to satisfy all the requirements for recognition of belligerency.7 Furthermore, third states were not willing to recognize belligerency as such recognition rnight have been considered a hostile act by the incumbent government. In this respect, the case of the Spanish civil war is illustrative. Here, in fact, recognition of belligerency should have been granted, but, for political reasons, it was not. By contrast, the American civil war represents one of the exceptional cases in which recognition of belligerency was conceded.

3

"War is a contention between two or more States through their armed forces, for the

6

purpose of overpowering each other and imposing such conditions of peace as the victory pleases .... A contention may, of course, arise between the armedforces of a State and a body of armed individuals, but this is not wa-r'. Lauterpacht, H., Oppenheim's International law, vol. II, Disputes, war and neutrality, seventh edition, Longmans, Green and Co., London 1952, p. 202. (Emphasis added). See generally, Lauterpacht, H., Recognition in international law, p. 175. Ibid., p. 176. Ibid., pp. 228-229'

7

Ibid., p. 183-

4 5

From the Lieber Code to the Drafting ofCommon Art. 3 ofthe Geneva Conventions

2.

31

The American civil war and the Lieber Code

During the American civil war, as a result of the recognition of belligerency, 8 both sides were expected to respect the laws ofwar. In order to make the army acquainted with the obligations of internationallaw Professor Francis Lieber, together with a board of officers approved by President Lincoln, prepared a code of land warfare: the Instructions for the Government ofArmies ofthe United States in the Field (General Orders NO.IOO}.9 The contribution of the code to the evolution of the law ofwar in non-international armed conflicts is evident considering that the Lieber code represents the proftssionalisation and formalisation of the law of war. This appears from the fact that the code was made by qualified officers and jurists in order to lay down a set of rwes which could be externally enforced. It did not deal with military strategy, but with external imposed legal restraints upon the fighters. This also marked the passage from the code of chivalry and honour, which, being individual and personal, imposed self-imposed restraints, to rules of law whose validity and respect is based only on legal bases and enforced externally. The rules of law provided by Professor Lieber have been described as follows: 10

8

9

10

That a war in the material and legal sense existed between the North and the South was first recognized in May 1861 by the Confederate congress. In December 1862 a similar statement was made by the Supreme Court ofthe United States. Furthermore, the Union had taken a similar stand through the "Blockade Proclamation" and also several outside states, by proclaiming their neutrality, recognized the state of war. Wright, Q, "The American civil war, 1861-65", in Falk, R.A., (ed.), The international law ofcivil war, The John Hopkins Press, Baltimore 1971, p. 42. The code was issued to the Union Army on 24 April 1863. Francis Lieber was requested to draft the code as he was well-known "in [... ] military and administrative circles as cared about such things as the law ofwar". Best, G., Humanity in warfare, Methuen, London 1980, p. 155. In the nineteenth century other military manuals and books relating to the law of war, such as the Oxford Military Manual, (188o), were also published. Here they are not dealt with as they did not address specifically internal armed conflicts. It is noteworthy, however, mentioning the criticism by the ICRe and of Westlake of the Holtzendotjfs Handbuch written by Lueder. In particular, Lueder purported "to subordinate the [Geneva] Conventions humanitarian purpose to the material ends of the war". His work was criticised as not reflecting a right view of the law. Ibid As Westlake pointed out, "[t]he term kriegsmanier, the custom or we might almost say the etiquette of war, was first used when belligerents were restrained only by the courtesy of commanders and the sense that a more or less orderly behaviour towards the enemy was indispensable to the discipline and effectiveness of their own forces. It has grown to a code in which humanity to the enemy on the one side and the essential needs ofwar on the other have been considered". Westlake,]., International law, Part II, War, Cambridge University Press, Cambridge 1913, p. 128. (Emphasis added).

32

Chapter II "While the instrument was a practical presentation of what the laws and usage of war were, and not a technical discussion of what the writer thought they ought to be, in all its parts may be discerned an instinctive selection of the best and most humane practice and an assertion of the control of morals to the limit permitted by the dreadful business in which the rules were to be applied". I I

In particular, as regards the application of the laws ofwar to internal armed conflicts, it was held that "it is generally expedient that the ordinary rules of war should extend, as far as possible, to civil wars.121he restraints which they impose are here as wholesome, their influence in making war regular and humane and in confining its range are as useful .... (sid). 'These considerations appear to show not only that recognition may be conceded, but that it ought not to be withheld". 13

This appears to suggest that the applicability of the international law rules was a reason for, rather than a product of recognition of belligerency. Although there was a general concern in providing legal regulation for the conduct of hostilities in non-international armed conflicts, Lieber was unwilling to add the 9 articles l4 of the Code that deal with internal armed conflicts so as not to give the impression that his Code was applicable to civil wars instead of to international ones. 15 Furthermore, the application of the law ofwar to non-international armed conflicts was based more on moral and humanitarian considerations than on a legal basis. Article 152 of the Liebers's Code, in fact, states that the application ofthe rules ofwar, required by international law in inter-state wars, is "required toward rebels less by a sense of legal obligation than by considerations of humanity". 16 II

12

13

14 15 16

Root, E.,Addresses on internationalsubjects, Seventh Annual Meeting ofthe American Society of International Law, Washington, D.C. 1913, p. 456. It is noteworthy that the author might appear to suggest that the laws ofwar should be applicable not just where there was recognition of belligerency but to all kinds of civil wars. Bernard, M., A historical account ofthe neutrality of Great Britain during the American civil war, London 1870, quoted in Draper, G.I.A.D., "Humanitarian law and internal armed conflicts", 13 GA.]INT'L & COMEL. 253 (19 83), p. 258. The total number of the articles is 157. Meron, T., "Francis Lieber's Code and Principles of Humanity", 36 ColumbiaJournal ofTransnational Law 269 (1997), p. 269. Wright, Q, "The American civil war, 1861-65", p. 55. To show the impact of humanitarian considerations on the rules of law applicable to non-international armed conflicts it is also worth mentioning a passage from a despatch sent in 1824 for the use of the British Minister: "The doctrine of Prince Metternich, that the Greeks, as rebels, are not entided to the same rights ofwar [...] is one,ofwhich, we think His Highness would do well to weigh all the consequences [...] The practical enforcement of that

From the Lieber Code to the Drafting ofCommon Art. J ofthe Geneva Conventions

33

The articles of the Lieber Code under the heading "insurrection-civil warrebellion" are noteworthy in that they show humanitarian concern with regard to conflicts which, for a long time, international law had considered to be outside its scope. The most relevant provisions, whilst aiming at extending the humanitarian law ofwar treatment to rebels, try to assure governments that the application of the rules of war to rebels would not mean any change in the legal status of the fighters (art. 152). Rather, the central government kept its right to treat the rebel leaders as traitors. As article 154 puts it: "treating, in the field, the rebellious enemy according to the law and usages ofwar has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty". Finally, although Lieber, in article 153, seems to suggest that captured rebels could be treated as prisoners of war, in that this treatment "neither proves nor establishes an acknowledgement of the rebellious people, or of the government which they may have erected, as a public or sovereign power", as captured fighters could be prosecuted, (art.I54), it appears that they had no special status. They presumably could benefit from the rules on treatments of prisoners ofwar contained in, for example, articles 56,75, and 76 of the code. The concern shown by the Lieber Code about the treatment of captured fighters is in accordance with the conclusions reached by the previous chapter. In particular, as the Lieber Code was dealing with what should happen on the battlefield, it did not focus on concepts born out of the theory of state sovereignty, such as recognition of belligerency. This is because soldiers, to a much greater extent than lawyers/philosophers/theologians/politicians may need to treat conflicts in an essentially similar way, whether they are international or non-international. The practical issues which arise are, in fact, similar in both cases. On the contrary, those who are concerned with the role and function of the state are likely to mantain the division between international and non-international conflicts. The Lieber Code was just a start in the codification of rules of law applicable in armed conflicts. In the same year in which the Lieber Code was issued, an international organization, the ICRC, was, in fact, established, which, from that time on, has played a key role in the development of rules of law relating to armed conflicts.

doctrine could have no other effect than to convert the contest [...] into one of indiscriminate rapine and massacre [...] we think it for the Interest of humanity to compel all belligerents to observe the usages by which the spirit of civilization has mitigated the practice ofWar". Qyoted in Lauterpacht, H., Recognition in international law, p. 227. (Emphasis in the original). See further below, section 8.

34

3.

Chapter II

The role ofthe International Committee of the Red Cross (ICRC) in the formation ofhumanitarian law ? 1

Having witnessed the appalling conditions of the wounded in the battle of Solferino in 1859, a Swiss businessman,]. Henry Dunant, inspired by Christian feelings,r8 wrote a book titled "Un souvenir de Solferino" in which he described the sufferings of the wounded in war and supported the idea of establishing relief societies to protect the victims of war. In 1862 the book was published and distributed at the expense of Dunant, who also sent many letters to gather sympathy and support for his ideas. 19 Finally, in 1863, Dunant, with four other Swiss citizens, created an International Committee in order to establish aid societies in every country and guarantee them a neutral status. The first important step forward taken by this Committee was the drawing up of a draft agreement 20 contained in a brochure, which was sent to government representatives, military, medical and philanthropical personalities. The brochure also contained an invitation to participate to a Conference addressing the issues raised in the draft agreement. At the Conference, which took place 21

17

18

19 ·20

21

In this section the role of the ICRC in developing humanitarian law is dealt with in general terms. The specific role played by the ICRC during the drafting of treaty rules relating to non-international armed conflicts is dealt with further below, when the negotiation process of the treaty rules is analysed. On the importance of the Christian teaching in the development of the ICRC see Boissier, P., History of the International Committee of the Red Cross: from So!ferino to Tsushima, Henry Dunant Institute, Geneva 1985, p. II and Hutchinson,J.F., Champions of charity: war and the rise of the Red Cross, Westview Press, Oxford 1996, p. 203 and ff. Henry Dunant refers expressly to the Christian tradition of humanity in its book Un souvenir de So!ferino. In particular, in supporting the creation of relief societies, he says: "In view of all this, why could not advantage be taken of a time of relative calm and quiet to investigate and try to solve a question of such immense and worldwide importance, both from the humane and Christian standpoint"? Dunant, H.,A memory ofSolftrino, International Committee of the Red Cross, Geneva 1986, p. 116. Boissier, P., History ofthe International Committee ofthe Red Cross, p. 56. The draft agreement contained provisions related to the organization of the nascent ICRC and of the national aid societies. Boissier, P., History ofthe International Committee ofthe Red Cross, p. 56.

From the Lieber Code to the Drafting of Common Art. 3 ofthe Geneva Conventions

35

in r863 and marked the creation of the ICRC,22 sixteen states and four philanthropic societies were represented. 23 Thus, as appears, from the very beginning, the International Conference was composed of both government and "civil society"2 4 representatives. This composite nature, which has remained unchanged for the subsequent International Red Cross Conferences, offers a unique opportunity for ensuring that humanitarian concerns reach states and that the work of the Red Cross is known and approved by governments. In particular, such conferences, resembling "a kind of international congress",2 5 where the ICRC presents resolutions and draft conventions, are extremely important, not only in shaping the mandate of the ICRC, but also in pushing for the development of humanitarian law. Such texts, being discussed by state representatives, have, in fact, the effect of informing states of the proposals made to improve humanitarian law and ofmaking them prepared to deal with such proposals at a later stage, during Diplomatic Conferences convened for the specific purpose of developing humanitarian law. The ICRC invited government representatives as it soon realized that the same government representatives often attended both the Red Cross Conferences and the Diplomatic Conferences convened by the ICRC in order to develop humanitarian law. 26 This contributed a good deal to the success of the latter Conferences. During the Diplomatic Conferences, the IeRC also plays a very 22

23

24

25

The history of the ICRC, a Swiss private law institution, and the evolution of its mandate are beyond the scope of the study. Their analysis is limited to pointing out the importance of the ICRC in developing treaty rules relating to armed conflicts and to internal armed conflicts in particular. As regards the specific role of the ICRC, suffice it to say that it purports to protect the lives and dignity of victims of war and provide them with assistance. From the very beginning, in order to achieve such tasks, the ICRC created national relief societies and pushed for the adoption of specific treaty law addressing the protection of victims of war. Thus, since its creation, it has worked both to improve its field work and to develop humanitarian law. It is worth mentioning that "although philanthropists may have been moved by pietist appeal to Christian conscience or by the utilitarian aspiration to create a more civilized world, the agreements of 1863-1864 could not have taken place unless those states most likely to go to war calculated that the provisions contained therein were in their own best interests". Hutchinson,j.F., Champions ofcharity: war and the rise of the Red Cross, p. 55. From then on, the interplay between non-governmental organizations and states has produced important results. In particular, when humanitarian concerns match political considerations, the result can be extremely productive. (See further below, chapter V.) The presence of representatives of the "civil societies" such as NGOs before and during the drafting of international law treaty rules has consolidated only recently. See further below, chapter 111.4. Definition given by the president of the Geneva Committee, General Dufour, in order to describe the International Conference of 1863, quoted in Boissier, P., History

ofthe International Committee ofthe Red Cross, p. 70.

26

Ibid., p. 338.

36

Chapter II

important role as it can submit proposals, often in the form of draft treaty texts, and take an active part during the discussion of these texts. As Gustave Moynier, one of the five original members of the ICRC pointed out, the ICRC is extremely well qualified to address humanitarian law issues as, beyond counting upon the work of highly regarded international lawyers and military experts, it also benefits from the knowledge gained during its work in the battlefield: 27 "Better than all our reflection and our conferences, such experiences [first-hand field observations] pointed to the deficiencies which had to be made up, the inadequacies which had to be corrected and the improvements required. They also triumphantly demonstrated the importance of the work and the correctness of the approach that we were following and attempting to spread". 28

Unlike other NGOs, the ICRC can perform its work in the battlefield more easily than other organizations as its work has been expressly recognized by states. 29 Therefore, it does not need to legitimize itself in order to operate. Furthermore, although the JCRC is an independent humanitarian organization having a status of its own, it receives substantial contributions from governments that enable it to carry out tasks which require strong financial power. 30 The commentaries to the international conventions and the studies produced by the ICRC, which address problematic aspects of the existing law and the interpretation and application of humanitarian law, also have a considerable impact. In particular, these studies, pointing out the possible shortcomings of the

existing treaty provisions, might have the indirect effect of pushing for the development of new treaty rules)! As regards the role of the ICRC in the case of non-international armed conflicts, the first attempts to provide a legal regulation of the humanitarian assistance offered by the ICRC to the parties in internal armed conflicts dates back to 1912. In particular, during the IXth International Conference of the Red Cross held in Washington in 1912, a motion was considered in order to address the work of National Societies in time of civil war and insurrection. As this proposal 27 28 29 30

31

See further below, chapter JJ1.4 to see how other NGOs also benefited from their field activities in raising humanitarian issues awareness. Statement of Moyner, quoted in Boissier, P., History ofthe International Committee of the Red Cross, p. 99. Not only has the JCRC been formally recognized in the Geneva Conventions, but also states have voted for its statute, which enables the JCRC to carry out its tasks. On the relationship between Switzerland and the Red Cross see Moorehead, C., Dunant's dream: war, Switzerland and the history of the Red Cross, Harper Collins Publishers, London 1998. See, for example, further below, the impact of the study on landmines produced by the JCRC. (Chapter V.2).

From the Lieber Code to the Drafting ofCommon Art. 3 ofthe Geneva Conventions

37

was opposed by several government delegates,3 2 the JCRC found it expedient to withdraw the motion at that time. 33 In 1921, following the "distressing experiences of the Red Cross in countries engaged in civil war", especially in Eastern Europe and during the Russian revolution of 1917, a resolution was adopted by the International Conference of the Red Cross,H to allow the Red Cross to offer its humanitarian services in situations of internal conflicts, including internal disturbances. This resolution is extremely important as it not only addressed the role of National Societies and of the ICRC in internal conflicts, but also it affected the mandate of the ICRC. In particular, the resolution stated that

"[...J 3.

4.

The Xth International Red Cross entrusts the International Committee of the Red Cross with the mandate to engage in reliefin the event of civil war, in accordance with the above prescriptions. The Xth International Red Cross Conference, recalling the distressing experiences of the Red Cross in countries engaged in civil war, draws the attention of all peoples and Governments, of all political parties, national or other, to the fact that the state of civil war cannot justifY violation of International Law35 and that such law must be safeguarded at all cost.

[... ] 6.

32

33

34

35 36

The Xth International Red Cross Conference deplores the unlimited suffering to which prisoners and internees are sometimes subjected in countries engaged in civil war, and is of opinion that political detainees in time of civil war should be considered and treated in accordance with the principles which inspired those who drew up the 1907 Hague Convention. "3 6

It was particularly opposed by the Russian delegation, which stressed that" ... les Societes de Croix-Rouge ne sauraient avoir de devoir a remplir aupres de bandes insurgees ou de revolutionnaires lesquelles ne peuvent etre considerees par les lois de mon pays que comme des criminels". Qyoted in Abi-Saab, R., Droit humanitaire et conflits internes: origines et evolution de la reglementation internationale, A. Pedone ed. Paris, with Institut Henry Dunant, Geneve 1986, p. 32, footnote 76. The ICRC so justified the withdrawl of the motion: "La Commission n'a pas voulu donner une fin de non recevoir au rapport de M.Clark et aux declarations de M.Fuentes, comme si on ne voulait pas meme les prendre en consideration; la majorite en a fait simplement une question d' opportunite". Qyoted in Ibid., p. 33, footnote 77· Which, it is worth recalling, also includes government representatives. See further below, section 8. Qyoted in Durand, A., History of the International Committee of the Red Cross,jrom Sarajevo to Hiroshima, Henry Dunant Institute, Geneva 1984, pp. 199-200.

38

Chapter II

By accepting the principle of humanitarian assistance to the victims of internal conflicts, it might appear that states started to find a compromise between their sovereignty and considerations of humanity. Although this conclusion is not a necessary one, given that states stressed that such an acceptance did not affect the status of the parties to the conflict and that such a fear was often a reason for their refusal to accept the offer, it is illustrative that, when, a few years later, in 1936, the Spanish civil war broke out, most states pushed for the application of basic rules of humane treatment even during this armed conflict. It should be remembered, however, that the Spanish civil war was a high intensity non-international armed conflict, with external intervention, where recognition ofbelligerency might have been expected. 37 Therefore, it might be possible that states were willing to apply humanitarian law rules only to that type of conflict and not to all internal armed conflicts. Whatever the reasons that pushed states to call for the application of humanitarian law rules during the Spanish civil war, it is noteworthy that the first important ICRC resolution expressly addressing the application of principles of humanity in internal armed conflicts dates back to 1938, two years after the start of the Spanish civil war.3 8 In particular, the resolution, adopted during the XVI International Conference of the Red Cross, (1938), invited the ICRC and the National Societies of the Red Cross to apply the principles of humanity of the Geneva Convention of 1929 and of the Hague Convention X of 1907 to internal armed conflicts. It should be noted that the former convention refers to prisoners ofwar, a status which does not exist in non-international armed conflicts. The ICRC has generally succeeded in affording humanitarian assistance to the victims of conflicts by relying on the consent and the co-operation of the parties involved. As its work depends on the co-operation of the parties, its operations are strictly confidential and it publishes its reports only if the governments of the countries concerned issue selective or inaccurate reports. 39 As a result, the ICRC avoids investigating humanitarian law violations or, at least, avoids publishing the results of such investigations, considering that this activity would undermine its neutrality and could induce the party involved to deny the ICRC its co-operation and even access to the victims of the conflict. 40 37

Furthermore, the Spanish civil war is also considered by several authors as an international conflict. See, for example, Lauterpacht, H., Recognition in international law, P· 184· 38 The resolution is dealt with in more detail further below, when the negotiation process of common article 3 to the Geneva Conventions is analysed. 39 See Rodley, N .S., "Monitoring human rights violations in the 1980s", in Dominguez, ].1., Rodley, N.S., Wood, B. and Falk, R., Enhancing global human rights, McGrawHill, New York 1979, p. 143. 40 The JCRe, in order to be effective in assisting the victims of war, cannot extend its mandate to address specifically humanitarian law violations as, to undertake the task ofjudging whether or not the acts ofgovernments are in compliance with humanitar-

From the Lieber Code to the Drafting ofCommon Art. 3 ofthe Geneva Conventions

39

Finally, as regards the prevention of humanitarian law violations, as early as 1870, Gustave Moynier pointed out that "the only reasonable guarantee" to deter

such violations "should lie in the creation of international jurisdiction with the necessary power to compel obedience".4 As will be seen further below, when dealing with the negotiation process of the treaty rules applicable in non-international armed conflicts, the concern of the ICRC in forming rwes oflaw relating to armed conflicts has continued uninterruptedly since its creation. 1

4.

The influence ofthe Spanish civil war on the development ofrules oflaw applicable in non-international armed conflicts

An important indication of the evolution in the attitude of states regarding the law applicable in non-international armed conflicts is given by their reaction to the Spanish civil war, which proved to be one of the most bitter and savage internal armed conflicts of the twentieth century.42 It is significant, in fact, that both combatant parties, although not legally bound to do so, claimed that they would respect the law of war. In particular, the Republicans declared that they would treat prisoners ofwar according to the military code and the Nationalists stated that they respected "with the utmost scrupulousness, the laws and custom ofwarfare".43 Furthermore, notwithstanding the fact that neither the republican government nor third states had recognized the insurgents as belligerents, many third governments expressed the opinion that some fundamental rules of war were to be extended to cover civil strife as well, regardless of any recognition of belligerency.44

41

42

43 44

ian law, would prejudice its humanitarian activities. See Hampson, F.]., "States' military operations authorized by the United Nations and International Humanitarian Law" in Condorelli (ed.), 1he United Nations andInternational Humanitarian Law, A. Pedone, (ed.), Paris 1996, p. 412. Q110ted in Boissier, P., History ofthe International Committee ofthe Red Cross, p. 282. As such a system, however, did not exist, he relied on public censure to sanction the violations of humanitarian law. He regarded, in fact, public opinion as "the best guardian of the limits it has itself imposed". Q110ted in Ibid. Suffice it to mention the bomb attack of Guernica. As the case of Guernica shows, the Spanish civil war was particularly atrocious in its conduct also because of the use of new technologies. On the Spanish civil war see generally Hugh, T., The Spanish civil war, Penguin Books, London 1986. Thomas, A.V.W. and Thomas, AJ., "International legal aspects of the civil war in Spain, 1936-1939", in R. Falk (ed.), The international law ofcivil war, p. 124. That considerations of humanity should be shown during all kinds of armed conflicts was already affirmed by Vattel. See chapter I and supra, footnote 16 and accompanying text.

40

Chapter II

For example, the Non-Intervention Committee45 tried to make the parties lessen "the cruel suffering inflicted upon the civilian population".46 Prime Minister Chamberlain, on 23 March 1938, protesting against the bombing of Barcelona stated that "the one definite rule of international law, [...] is that the direct and deliberate bombing of non-combatants is in all circumstances illegal".47 Similarly, the French government, together with the British government, declared that "direct and deliberate attacks on civilian population are contrary to the principles of international law as based on the established practices of civilised nations, to the laws of humanity and to the dictates of public opinion".48 It is noteworthy that this wording, closely modelled on the Martens clause, implied that this provision, although stated in the preamble of an international treaty, could also be applicable to internal armed conflicts. 49 Furthermore, the reference to the prohibition of attacks on the civilian population implied that during the conduct of hostilities in internal armed conflicts the principle of distinction must be respected. 5° An indication of the international attention attracted by non-international armed conflicts at the time of the Spanish civil war is also given by the fact that the draft code of aerial warfare,sI which prohibited aerial bombardment of 45

46

47

48

49

50

5I

This Non-Intervention Committee was constituted by 27 states, including the United Kingdom, the Soviet Union, Germany and Italy, in order to support a policy of nonintervention in the Spanish civil war. Despite the creation of this Committee, major powers, however, did help the fighting parties. In particular, Germany and Italy sided with the generals who had revolted and the Soviets with the Republic. Qyoted in Thomas, A.V.W. and Thomas A.J., "International legal aspects of the civil war in Spain, I936-I939", p. I29. Q1Ioted in Cassese, A., "The Spanish Civil War and the Development of Customary Law", in Cassese, A. Ced.) Current Problems in International Law: essays on u.N. law and the law ofarmed conflict, A. Giuffre editore, Milan I975, p. 308. Ibid., p. 298.1he view ofthe French and British governments were particularly important as they were major colonial powers. See further below. At the time of the Spanish civil war the Martens clause was embodied in the preamble of the 1907 Hague Convention IV Respecting the Laws and Customs ofWar on Land. However, the Martens clause was first agreed at the 1899 Hague Conference to provide humanitarian rules to the inhabitants of occupied territories. As formu1ated in the Hague Convention IV it states that: "Until a more complete code of the laws has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule 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". This reference is particularly important considering that, often, in the past, during the conduct of hostilities in internal conflicts the strategy of "drying up the water" was suggested. See supra, chapter I sections 5 and 6. It is referred to The Hague Rules ofAir Warfare, which were drafted in 1923 by a commission ofjurists. Although the code was not an international treaty, it "had persua-

From the Lieber Code to the Drafting of Common Art. 3 ofthe Geneva Conventions

41

civilian population for the purpose of terrorizing them, destroying non-military property and injuring non-combatants, was seen as expressing "a principle of humanity and civilized conduct and, thus, applicable in times of civil strife".5 Furthermore, following the events of the Spanish civil war, the Assembly of the League of Nations, in 1938, also adopted a resolution for the protection of the civilian population against bombing from the air without distinguishing between international and internal conflicts. In particular, the resolution stated that I) the intentional bombing of the civilian population is illegal; 2) objectives aimed at from the air must be legitimate military objectives and must be identifiable; 3) any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence. 53 It is interesting to note that those commenting on the Spanish civil war, apart from the IeRe, were state-centric bodies and not military commentators. It follows that, at least when it did not concern themselves, they thought that some ius in bello rules already existed in non-international armed conflicts. 2

5. The evolution ofthe principle ofstate sovereignty and the formation of rules oflaw applicable in non-international armed conflicts Although the humanitarian concerns expressed during the Spanish civil war might appear to suggest that states were ready to accept international provisions regulating internal conflicts, which, eventually, could affect their sovereignty, the international debate on the principle of state sovereignty was extremely controversial. In the nineteenth century the principle of absolute state immunity existed alongside the view that, in some circumstances, it was legitimate for a State to engage in humanitarian intervention to help those who were opposing a tyrannical ruler. The emerging principle of humanitarian intervention, by eroding the concept of state sovereignty, also contributed to the view that internal conflicts should fall within the sphere of interest of international law. In particular, at the beginning of the nineteenth century humanitarian intervention was mostly based upon religious affinity among Christians. It mainly developed in order to protect the "Christian brothers" from persecution under the Ottoman Empire.5 4 Later on, the conceptions regarding humanitarian intervention evolved so as to become

52 53

54

sive authority as a guide to rules of aerial combat". Thomas A.V.W. and Thomas A.]., "International legal aspects of the civil war in Spain, 1936-1939", p. 136. Ibid. League of Nations, (1938) OificialJournal, Special Supplement n. 183, pp. 135-136. Murphy, S.D., Humanitarian intervention: the United Nations in an evolving order, University of Pennsylvania Press, Philadelphia 1996, p. 51.

42

Chapter II

a means of liberating the oppressed. 55 In this respect it is illustrative to quote a passage of].S. Mill (r806-r873) in which, although he did not go so far as to allow states to help individuals fighting a tyrannical government, he supported external intervention in a case of a civil war that could be won only committing "severities repugnant to humanity". In fact, he held that ''A case requiring consideration is that ofa protracted civil war, in which the contending parties are so equally balanced that there is no probability of a speedy issue; or if there is, the victorious side cannot hope to keep down the vanquished but by severities repugnant to humanity, and injurious to the permanent welfare of the country. In this exceptional case it seems now to be an admitted doctrine, that the neighbouring nations, or one powerful neighbour with the acquiescence of the rest, are warranted in demanding that the contest shall cease, and a reconciliation take place on equitable terms of compromise".5 6

In order to prevent the interference of a state or of a group of states in the affairs of another state for the alleged humanitarian purpose of protecting the inhabitants from oppressive rulers, many treaty provisions, in the nineteenth century, were concluded for the benefit of specific groups. Affording the protection of minorities through treaty provisions was, in fact, a sort of "preventive device" to avoid a possible humanitarian intervention aimed at protecting minorities. 57

55 56

57

Ibid. Mill,].S., "A few words on non-intervention", in Robson,].M., Ced.), Essays on equality, law, and education, by ].S. Mill, University of Toronto Press, Toronto 1984, p. 121. (Emphasis added). On the same issue it is also worth mentioning the following excerpt from the Anna Karenin: "... There is no declaration of war in this case but simply an expression of human Christian feeling. Our brother, men of the same blood, the same faith, are being massacred. Even supposing they were not our brothers, our co-religionists, but merely children, women, and old people, feeling is aroused and Russians fly to help check these atrocities. Imagine you were walking along the street and saw some drunken men beating a woman or a child - I don't think you would stop to inquire whether war had been declared on the men: you would rush at them and defend the victim". Tolstoy, L.,Anna Karenin,].M. Dent and Co., London 1904. (Part 8.1S). See further below on the different attitude developed in Russia after the Russian revolution of 1917. Intervention clauses in treaties date back to the l ih and 18 th century. In the Treaty of Paris of 1856, however, the right to intervene was foresworn. It was readopted a few years later, at the Congress of Berlin of 1878, but as a collective right for the Great Powers. As regards treaties aimed at protecting minorities see for example the London Protocol of 1830, the Convention of Constantinople of r879, and the Convention of 1881 for the Settlement of the Frontier between Greece and Turkey.

From the Lieber Code to the Drafting of Common Art. J

ofthe Geneva Conventions

43

The focus on minority rights in treaty provisions continued in the early part of the twentieth century.5 8 In particular, the League of Nations,59 which purported to limit the power of states in taking actions that could result in state aggression, provided an articulated system for the protection of minorities. 60 The creation of the League of Nations, however, did not succeed in guaranteeing a full respect of minority rights. Furthermore, it did not prevent the unlawful use of force by states under any pretext. 6r Its failure has been so described: "it was the destiny of the League to encounter a greater measure of deliberate aggression, attended by a wilful and deliberate disregard of all humanitarian considerations, than has ever been manifested - again either before or since - in any comparable span of years. For Japan, Italy and Germany in turn asserted during the life of the League an absolute right to go to war for any reason or no reason, and an indifference to the laws of either war or peace to which the only ultimate answer could be, as in fact it proved to be, likewise war unlimited in scale or method". 62

The only significant measure against a state for its act of aggression was taken in 1939 against the Soviet U nion63 for its invasion of Finland. The action taken against the Soviet Union was particularly relevant as, following the Russian revolution of 1917, the Soviet Union was one of the actors that influenced most the development of the theory of state sovereignty. Within that country, the Communist theory ofinternationallaW>4 was developed. In its original form, the theory held that there could be no international law of universal validity, i.e. applicable both to "capitalist" and "socialist" states. It not only denied the validity of older customary law and of treaties concluded by the Tsarist government,6 5 but also the possibility of a world government. According to Soviet thinkers, the only world community could be a communist world. Moreover, the communist theory ofinternational law put enormous emphasis on the concept of sovereignty and on the pre-eminence of the state. 58 59 60

61 62 63 64

65

For a list of instruments drafted following World War I see Thornberry, P., International law and the rights ofminorities, Clarendon Press, Oxford 1991, p. 4I. The League of Nations was established in April 1919. See Thornberry, P., International law and the rights ofminorities, pp. 44-46. See also supra, chapter 1.4. Q90ted in Malanczuk, P., Akehurst's modern introduction to international law, Routledge, London 1997, p. 26. The Soviet Union was expelled from the League. It had been admitted in 1934. See generally Tunkin, G.I., Theory ofinternationallaw, George Allen and Unwin Ltd, London 1974. The emphasis reserved to the issue is justified considering the impact of the Communist theory of international law on the evolution of the law relating to internal armed conflicts. Malanczuk, P.,Akehurst's modern introduction to international law, p. 23.

44

Chapter II

Following the failure of the League of Nations, the Soviet Union supported, after World War II, the establishment of the United Nations. The UN Charter makes reference to the problem of state interference in other states in its article 2(4).66 The socialist view of international law opposed any interpretation of this article that could allow third states to intervene in the sphere of another state. In particular, the Soviet Union, in contrast to Western countries, by adhering to a concept of absolute state immunity, claimed that a third state cannot put on the international agenda what is occurring in another state. Controversies between Socialist and Western countries also arose as regards the interpretation of article 2(7) of the UN charter. The UN Charter expressly recognizes the principle of "non-intervention" in matters which fall within the internal sphere ofjurisdiction of a state in article 2(7), which states that "nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII".

The legal basis for this principle resides in article 2(1) of the Charter, which recognizes "the sovereign equality of all members of the organization". Considering that the term sovereignty means the power of a state to perform its proper functions within its borders and "in relation to other States on a footing of independence and equality"6 7 and that the term domestic jurisdiction means "an area of internal State authority that is beyond the reach ofinternational law",68 it appears evident that a narrow interpretation of article 2(7)6 9 can represent a real barrier to the formation of treaty rules relating to internal armed conflicts. Socialist states, relying on the principle of state sovereignty, have often tried to prevent other states from taking any step against them for violations of international law, which were alleged to be committed within their borders. The 66

67 68

69

This provision states that state members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of a state. Waldock, H., "General course on public international law", 106-11 Recueil des Cours, The Hague Academy of International Law, 1(1962) p. 156. Bernhardt, R., (ed.), Encyclopedia ofpublic international law, Max Planck Institute for Comparative Public Law and International Law, Amsterdam 1992, p. 1090. On the issue see generally Arangio-Ruiz, G., "Le domaine reserve. L' organisation internationale et Ie rapport entre droit international et droit interne" 225-VI Recueil des Cours, The Hague Academy of International Law, 9-484 (1990). A narrow interpretation means that the treatment of nationals, apart from a few international law exceptions, falls always within the sphere of jurisdiction of the state.

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45

debate has mainly focused on the different interpretations of the term "intervention" and "sovereignty". On the one hand, in socialist countries, authors have argued that the word "nothing" contained in article 2(7) does mean "nothing"70 and, therefore, an external intervention, would never be justified. Furthermore, they have argued that, as article 2(7) plays a fundamental role, the human rights obligations contained in the charter are subject to this articleJI In particular, they have held that the protection of human rights is not a matter of international concern and the state itself is the only body responsible for the treatment of its own nationals. On the other hand, in Western countries, authors have favoured a more flexible interpretation of the UN principles and of the term "sovereignty".1hey have argued that states cannot evade international responsibility for violations of human rights by claiming that such matters fall within their domestic jurisdiction. In particular, as "no part of a treaty should be interpreted in isolation and independently of the rest of its provisions",72 article 2(7) cannot be read without considering the other provisions of the charter, including the provisions which deal with human rights.?3 Eventually, following the changes in the Former Soviet Union, the countries that adopted the Communist theory of international law have modified their approach, even if there are still some states, such as China, that take a similar view. Furthermore, the recognition that the maintenance of international peace and security could require conceding part of state sovereignty also contributed to the erosion of the concept of state sovereignty as developed in the past and to the development of human rights law.

6. The impact of the human rights movement on the international scene In the twentieth century, (especially after 1945),74 the emergence of an international human rights movement contributed enormously to the formation of the rules of law applicable to non-international armed conflicts. Mainly because of the way in which the Spanish civil war had been conducted and the denial of

70

71 72 73 74

Higgins, R., The development of international law through the political organs of the United Nations, Oxford University Press, London 1963, p. 64. Ibid., footnote 22, p. 65. Rajan, M.S., 1he UN and domesticjurisdiction, 1961, p. 73. Q!Ioted in Ibid., p. 65. Articles I, 13, 55, 56 and 73 are particularly relevant. Before 1945 it is worth mentioning the Human Rights Provisions of the Covenant of the League of Nations (1919) and of the ILO (1919), the treaty provisions relating to minority rights, and the Slavery Convention (1926). As appears, before 1945 the focus was mainly on collective (minority) rights. From 1945 on, starting with the UN Charter, there was a shift from collective to individual rights.

46

Chapter II

human rights to various groups, followed by the Holocaust, there was pressure to convert natural law rights into positive law rights recognized internationally.7 5 The need to create an international set of rules regulating the relationship between states and their own nationals at an international level became particularly urgent after World War II as there appeared to be a link between aggressive behaviour of a state against other countries and mass denial of human rights within its borders/ 6 The United Nations Secretary General has put the issue, in his first report on RespectJor Human Rights in Armed Conflicts, like this: "The Second World War gave conclusive proof of the close relationship which exists between outrageous behaviour of a Government towards its own citizens and aggression against other nations, thus between respect for human rights and the maintenance of peace". 77

This awareness made urgent the establishment of a body oflaw, external to states, imposing international legal obligations upon them and of international remedies in case such obligations were violated. In short, it was regarded as being of the utmost importance to create a group of rights regulating the relationship between the state and its citizens, that all human beings should be able to claim "as of right" of the society in which they live.7 8 Thus, since their institution, the United Nations organs have been strongly committed to elaborate several instruments for the protection of human rights. In particular, before the drafting of Common Article 3 to the Geneva Conventions, the concern of the international community for human rights is evident in the UN Charter, in which "faith in fundamental human rights, in the dignity and worth of the human person" is affirmed (1945); in the Universal Declaration of Human Rights (1948), in which the contempt for human rights 75

76 77

78

Whilst the need to make such rights part of positive law might be seen as a sign of the failure of natural law, the substantive content of the rights articulated owed more to natural law than to positive law conceptions. A challenge to the human rights movement was posed by the thinking ofNietzsche, who held that human rights were created by the weak people in order to protect themselves from the strong ones. Such a challenge is not dealt with in detail as, in the twentieth century, the role of philosophical thinking in shaping the law had diminished. In particular, it started to have only an indirect impact on the development of the law. The case of Germany was exemplary. Report of the United Nations Secretary-General on "Respect for human rights in armed conflicts", quoted in Schindler, D., "The International Committee of the Red Cross and human rights", 208 IRRC 125 (1979), p. 7. See Bernhardht, R., (ed.), Encyclopaedia ofpublic international law, p. 886. Before the creation of an international body of rights whilst the way a state treated foreigners was a matter for the international law ofstate responsibility, the way it treated its own citizens was not. Therefore, the same conduct of two people, in the same demonstration, one foreign and one a citizen, had completely different results.

From the Lieber Code to the Drafting of Common Art. J

ofthe Geneva Conventions

47

that has resulted in "barbarous acts" is recognized, and in the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide (1948)/9

Although there seems to have been an assumption that human rights were peacetime rights, the emergence of the human rights movement showed that the respect for human rights was a guarantee against the atrocities experienced in the past decades and against the need to revolt, as the preamble of the UN Charter and the Universal Declaration of Human Rights made it clear. 80 In the aftermath of the Second World War, the general consensus that welcomed the human rights movement is also shown by the fact that states were generally keen to embody human rights principles in their national constitutions. 81 The importance of a "human rights-oriented atmosphere" for the formation of the internationa1law of internal armed conflicts is evident considering that the main international human rights law instruments provide individuals with a wide protection of rights in all circumstances. In particular, even if human rights have been created to regulate the relationship between states and their citizens in peacetime, the core of human rights law applies not only in peacetime but also in time of war. In fact, "depending on its content and nature, a peacetime human right may disappear in wartime, remain the same in wartime as in peacetime, be diminished, or be expanded".82 Therefore, as human rights law also offers a legal instrument for the protection of individuals during internal armed conflicts, its emergence on the international scene made it clear that even in internal armed conflicts certain international law rules were to be held applicable. 83

79

80 8r

82

83

This Convention is analysed in more detail further below, in chapter VI, when the conditions that led to the drafting ofthe provisions ofthe statute ofthe International Criminal Court related to internal conflicts are dealt with. See also supra, chapter I, footnote 8r. Human rights were also embodied in the Russian constitution. This is because the socialist attitude to human rights was not of denying their existence, but of opposing international mechanisms for their implementation. This attitude makes it not surprising that, during the drafting of common article 3, (see further below), the Soviet Union sided with Norway in pushing for a high standard of protection during internal conflicts. See also supra, section 5. Meron, T., Human rights in internal strife: their international protection, Grotius Publications Limited, Cambridge 1987, P.I4. However, it should be noted that, at that time, it was not clear that international humanitarian law and human rights law were the same kind of thing. The importance of the relationship between human rights and humanitarian law for the development of rules of law applicable in non-international armed conflicts is dealt with further below, in the next chapter. The impact of the work of human rights bodies on the development of the law of non-international armed conflicts is dealt with further below, in chapter 111.3.

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Chapter II

Similarly to the evolution of the human rights movement, the thinking of Christian theologians also evolved in part owing to the issues raised by the situation in Germany before World War II and to the conduct of that conflict.

7.

Right to revolt and the Christian tradition

The religious conceptions ofwar that were so important in shaping the regulation of internal conflicts in early times, in the twentieth century existed alongside a more recent humanitarian concern with the needs of the victims of conflict. As regards the Christian tradition, at the beginning of the twentieth century, there was already a general agreement among Catholic theologians that the overthrow of a lawfully constituted government by force could be justified provided that certain conditions were met. In particular: I)

2) 3)

The constituted government had to be guilty of grave and prolonged violation of the rights of its subjects; All peaceable ('constitutional') methods of obtaining redress and reforms should have been tried and failed; There should have been high probability of success in order to minimize the distress for the civilian population. 84

From the acknowledgement that the rebellion should have taken place" only when there was a reasonable prospect for success in order to minimize the distress for the civilian population, it can be inferred that, during a civil war, it was regarded as necessary to have a limited fight. Only the respect of jus in bello rules could have, in fact, saved the civilian population from the atrocities of an internal war. Similarly, on the Protestant side, the conceptions, according to which "outrage is not to be resisted but endured",8 5 were progressively modified. Some Protestant theologians rejected forms of pacifism which purported to apply non violent solutions to all political problems. 86 Some of them even became political activists to oppose the Nazis in Germany. The case of Bonhoeffer, (1906-1945), whose view of international affairs at first was close to pacifism,8 7 is illustrative. In particular, he participated actively in 84

85

86

Eppstein,]., The Catholic tradition ofthe law ofnations, Burns Oates and Washbourne LTD, London 1935, P.357. It is noteworthy that the necessity of minimizing the distress for the civilian population resembles the condition required by Thomas Aquinas to have "justified" rebels. See supra,chapter I, text accompanying footnotes 12 and 13. See supra, chapter I, text accompanying footnote 28. See for example, Niebuhr, R., Faith and history:a comparison ofChristian and modern views ofhistory, Nisbet and Co., London 1949. For a general overview see Wright,

].R.C., :Above parties': the political attitudes ofthe German protestant church leadership 87

I9I8-I9JJ, Oxford University Press, London 1974. "Bonhoeffer, Dietrich", Encyclopaedia Britannica Online.

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49

the resistance movement to overthrow Hitler and paid for his involvement with his life. To explain why he preferred risking his own life to taking refuge in the United States, he said: "I will have no right to participate in the reconstruction of Christian life in Germany after the war if I do not share the trials of this time with my people".88 This thinking, alongside the emerging human rights movement, posed obvious challenges to the overriding priority attached to state sovereignty by the majority of international lawyers during this period. If, in fact, in certain circumstances, individuals had the right to revolt or at least could not be merely dismissed as rebels, then this had implications for the position to be taken byoutside states. Furthermore, if, in certain circumstances, people might be expected to revolt, this begged the next question: were there international legal rules applicable during the fighting? Given that any acceptance of legitimate revolt89 was based on gross and systematic violations of human rights, whether arising out of the theory ofjust war or natural law, one might have expected a positive answer to that question. The first international treaty addressing internal armed conflicts was, however, drafted only in 1949. 8.

An overview of the drafting history of Common Article 3 to the Geneva Conventions of 1949

As the theory of belligerency has shown, states were ready to consider the possibility of applying the law of war to non-international armed conflicts only if the organized armed groups could fulfil the conditions required to obtain "belligerent status". Furthermore, state practice, with regard to recognition ofbelligerency, most notably during the Spanish civil war, suggests that states were unwilling or reluctant to use that device. At the same time, states did appear to think that rules applied even to the conduct of non-international armed conflicts. 90 Given this situation, it is understandable why the minimum guarantees provided by common article 3 to the Geneva Conventions had a long and difficult drafting history. In particular, whilst the need to develop a set of rules in internal armed conflicts was already recognized at the Tenth International Red Cross Conference of 1921, the express request for the application of humanitar88

89

90

Qyoted in ibid. Another prominent German anti-Nazi theologian ,who was persecuted under the Nazi regime for his efforts in opposing the attempt by Hitler to bring the German churches under the control of the Nazis was Martin Niemoller (r892-r984)· It is worth remarking that, according to the Christian tradition, there was a distinction between the right to revolt and the recognition that the revolt would not be a "sin". It was, in fact, not only necessary to have a just cause to revolt, but it was also necessary to conduct a limited fight. See supra, footnote r6, and text accompanying footnotes 46 and 47.

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Chapter II

ian law provisions in internal armed conflicts came at the XVIth International Conference of the Red Cross Conference in 1938. The Conference adopted, in fact, a Resolution relating to the role and activities of the Red Cross in time of civil war. The Resolution read as follows: "The Conference, having taken cognizance with keen interest of the Report presented by the International Committee of the Red Cross on the role and activity of the Red Cross in time of civil war, recalling the Resolution relating to civil war adopted by the Xth Conference in 1921, pays tribute to the work spontaneously undertaken by the International Committee of the Red Cross in hostilities of the nature of civil war, and relies on the Committee to continue its activity in this connection with the co-operation of the National Societies, with a view to ensuring on such occasions respect for the high principles which are at the basis of the Red Cross movement, requests the International Committee and the National Red Cross Societies to endeavour to obtain: (a) the application of humanitarian principles which were formulated in the Geneva Conventions of 1929 and the Tenth Hague Convention of 1907, especially as regards the treatment of the wounded, the sick, and prisoners of war, and the safety of medical personnel and medical stores; (b) humane treatment for all political prisoners, their exchange and, so far as possible, their release; (c) respect for the life and liberty of non-combatants; (d) facilities for the transmission of news ofa personal nature and for the reunion of families; (e) effective measures for the protection of children [... ]".9 1

These provisions are essentially humanitarian in character as, at that time, states were not yet ready to accept binding legal obligations restraining their action during the conduct ofhostilities in internal armed conflicts. The repression of rebellion was too sensitive a topic. Even later, after the Second World War,9 when there was a growing international concern for the protection of human rights that led to the adoption of the Universal Declaration of Human Rights, states clearly showed their reluctance to accept international legal obligations during the conduct of hostilities in internal armed conflicts. Given this situation, the President of the ICRC, at the opening of the Preliminary Conference of the National Societies of the Red Cross in 1946, addressed the need not to submit audacious proposals, which would easily fail to obtain the necessary governmental support. In particular, he stated: 2

91

92

International Committee of the Red Cross with International Federation of Red Cross and Red Cross Societies, Handbook of the International Red Cross and Red Crescent Movement, thirteen edition, Geneva 1994. See also supra, section 3. See supra, text accompanying footnote 76.

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51

"Certes, les Croix-Rouges qui, conduites par leur ideal humanitaire, formuleraient des propositions plus hardies que les solutions envisagees par les Gouvernments, resteraient dans Ie cadre de leur mission particuliere. Toutefois, elIes seront bien inspirees si, fideles a l' esprit qui animait leurs efforts de Ia premiere heure, elles se placent sur Ie terrain des realites et s' efforcent de trouver des solutions offrant de serieuses chances de passer dans Ie droit international positif et de se voir realisees al'heure critique".93

Despite the efforts in finding solutions that might have reasonable prospects of adoption, the Conference of National Red Cross Societies, in 1946, proposed an article that would be considered revolutionary even today. It suggested that international and non-international armed conflicts should be regulated in the same way, regardless of the threshold of intensity of the latter ones. Furthermore, the term used was "armed conflicts", not civil wars, which might have implied an armed conflict fulfilling the conditions for the recognition ofbelligerency. In particular, it was proposed that, "in the case of armed conflict within the borders of a State, the Convention shall also be applied by each of the adverse Parties, unless one of them announces expressly an intention to the contrary".94 Finally, the International Red Cross Conference held at Stockholm in 1948 adopted a draft text in which the reference to the condition of reciprocity was omitted. 95 The proposal read as follows: "In all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each of the adversaries. The application of the Convention in these circumstances shall in no way depend on the legal status of the Parties to the conflict and shall have no effect on that status".96

93 94

Qyoted in Abi-Saab, R., Droit humanitaire et conftits internes: origines et evolution de la riglementation internationale, p. 43. Qyoted in Elder, D .A., "The historical background of common article 3 of the Geneva Convention of 1949", II CASE W.RES.JINT'L L. 37 (1979), p. 42.

95

The omission was based on the consideration that «la condition de reciprocite risquait de priver de sa valeur la disposition, une Partie pouvant toujours alleguer que son adversaire n' observe pas telle ou telle clause de la Convention». Qyoted in AbiSaab, R., Droit humanitaire et conflits internes: origines et evolution de la reglementation

96

Qyoted in Elder, D .A., "The historical background of common article 3 of the Geneva Convention of 1949", pp. 42-43. The article was submitted to the Diplomatic Conference to be held in Geneva in 1949 with the deletion of the words "especially cases of civil war, colonial conflicts, or wars of religion" and the substitution of the term "provisions" to "principles".

internationale, p. 47.

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Chapter II

The discussion of this draft article at the Diplomatic Conference immediately proved to be difficult. It soon became clear that governments were very reluctant to accept that the provisions relating to international armed conflicts would cover internal armed conflicts as well. The main governmental objections to the draft article proposed by the ICRC have been summarized as follows: "The application of conventional norms to the opposition would give a belligerent status to them in fact, despite express stipulation to the contrary in the instrument; extend international legal regulation to situations therefore solely subject to the sovereign discretion of the State, an injudicious incursion endangered national and international security; the Conventions were in part inherently unsuited for internal application [... J; the rebels ordinarily acted with full cognizance of the risks they were running, including the penal sanctions for treason". 97

It is noteworthy that the then Soviet Union, along with a few other states such as Norway and Mexico, supported the proposal of the ICRC on the basis that the humanitarian character of the Conventions imposed their application to all kinds of conflicts. 98 The United States, on the other hand, proposed conditions which resembled the conditions to be fulfilled by insurgents to be recognized as belligerents. In particular, the United States held that the insurgents had to exercise de facto authority over persons within a determined territory; the armed forces had to act under the direction of the insurgent civil authority and to be prepared to respect the law of war. Furthermore, the insurgent civil authority had to agree to be bound by the provisions of the Convention. 99 The proposal of the United States was supported by France, the United Kingdom and Australia. These states, in fact, similarly to the United States, were most concerned to restrict within narrow limits the definition and the regulation of internal armed conflicts. 100 The result of the debate was a common article to the Geneva Conventions of 1949 (article 3) that reads as follows:

97 98

99 100

Q1loted in Ibid., pp. 43-44, footnote I9· See Abi-Saab, R., Droit humanitaire et conflits internes: origines et evolution de la reglementation internationale, p. 52. The support of the USSR for the JeRC's proposal for ubiquitous application ofthe laws ofwar can be explained considering that the Soviet analysis of international law did not oppose human rights per se, but external intervention in order to protect human rights of non-nationals. See supra, footnote 81 and section 5. See Elder, D.A., "The historical background of common article 3 of the Geneva Convention of 1949", pp. 44-45. Abi-Saab, R., Droit humanitaire et conflits internes: origines et evolution de la reglementation internationale, p. 52.

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53

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (I) Persons taking no active part in the hostilities, including members ofarmed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced 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. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

The final version of common article 3, although it is clearly a weakened version of the draft article proposed by the Red Cross, includes all the fundamental humanitarian restraints that states were ready to accept. Despite its weakness, it represented a success. For the first time, in fact, international law imposed treaty law obligations on all fighting parties, without the need to resort to the theory of recognition of belligerency. Thus, not surprisingly, common article 3 has been called a "convention in miniature", "a convention within the convention".IoI IOI This wording, which was first used by Jean Pictet, had the counterproductive effect of implying that the other provisions of the conventions did not apply to non-international armed conflicts. By defining, in fact, common article 3 a "convention within the convention", it would imply that there are two different conventions, one relating to international armed conflicts and the other, (a single article), to internal ones. This interpretation of common article 3, as separated by the rest of the Conventions, had several consequences for the application of the measures of repression provided by the Geneva Conventions in internal armed conflicts. In particular, by arguing that

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Chapter II

As appears, common article 3 provides only for the application of basic humane treatment and minimum procedural guarantees to persons not taking part in the hostilities, or who are "placed hors de combat by sickness, wounds, detention, or any other cause". In particular, according to common article 3, all these persons must be treated humanely without any adverse discrimination. Although some specific acts related to fundamental humanitarian principles are expressly prohibited in any circumstance, nothing in the article prevents state authorities from trying participants in the hostilities for treason. This punishment is only subject to the condition of being applied after a fair trial. As regards the interpretation of the provision that deals with the material field of application of common article 3, its wording presents many difficulties. Considering, in fact, that common article 3 applies to all cases "of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties", its applicability could be virtually unlimited. Even today, many years after it came into force, there is no agreement on the fundamental question related to the threshold of applicability of this article. In other words, in what circumstances does organized armed violence constitute and armed conflict? What is the difference between internal armed conflict and internal violence?102 Situations of internal violence are characterized by serious violations of human rights law. According to reports of the United Nations, the most frequent patterns of abuse involve arbitrary deprivation of life; indiscriminate attacks and killing of civilians both by armed forces and armed groups; arbitrary detention; violation of fair trial and of the international law prohibition of torture and other

cruel, inhuman or degrading treatment or punishment. l03 Whilst some incidence of such violations may occur without crossing the threshold of applicability of common article 3, a widespread incidence of such events, at least if accompanied by organized fighting, may cross the threshold.

the enforcement system of the Geneva Conventions applied only to international armed conflicts, it excluded internal armed conflicts from its field of application. The relevant articles of the Geneva Conventions, (respectively articles 49, 50, 129, 146), however, by stating that "Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than thegrave breaches" do include violations of common article 3 within the acts contrary to the provisions of the Geneva Conventions. (Emphasis added). See also further below, chapter VI. 102 Protocol II Additional to the Geneva Conventions, which develops and supplements common article 3, expressly excludes from its field of application "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence and other acts of similar nature, as not being armed conflicts". r03 See Minimum humanitarian standard, Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution I997/2I, E/CN .411998/87, paras. 24-37.

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55

According to the Conference of Government Experts preparatory to the Diplomatic Conference of 1974-77, internal disturbances were described as follows: "situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts ofviolence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules". 1°4

At the same Conference on the Development of Humanitarian Law of 1971, "internal tensions" were described with reference to the human rights violations that are usually perpetrated during this kind of internal unrest. It was suggested that "While situations of internal disorder [... J often lead to the arrest oflarge numbers ofpersons [... J, this phenomenon is likewise found in situations [... Jwhich reflect internal tensions [... JThis evolution is also due to the fact that the established governments and their police dispose of such powerful means of repression that an armed insurrection is often practically impossible. This may give rise to situations ofinternal tensions which are characterized by the fact that the governmental authorities keep full control ofthe events and undertake the massive internment of persons they consider dangerous to their security". 1°5

The necessity of a political motivation is expressly recognized by the Overseas Private Investment Corporation (OPIC) which has agreed to insure U.S. investments abroad against "an act of civil strife, [that is ...] a violent act undertaken by an individual or group with the primary intent of achieving a political objec-

104 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May - 12 June 1971, Documentation submitted by the ICRC, Vol. V: Protection ofvictims of non-international armed conflicts (1971), quoted in Sandoz,Y., Swinarski, C., and Zimmermann, B., (eds.), Commentary on the Additional Protocols of8June I977 to the Geneva Conventions of I2 August I949, International Committee of the Red Cross with M. Nijhoff Publishers, Geneva 19 87, p. 1355. 105 Reported in Meron, T., Human rights in internal strife: their international protection, P·78.

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Chapter II

tive".106 However, even if the politically motivated violence could be a valid guide line in distinguishing common criminality from internal disturbances and tensions, 107 it cannot be sufficient as "[t]he forms of violence are as diverse as the passions, the driving forces, the emotions, the motives, and the ingenuity of man. And even those who are moved by cupidity or by the desire for power will attempt to cloak their actions in the raiment of morality or politics". 108

Given this description of internal disturbances and tensions, I09 the difficulties in drawing a line separating such situations from internal armed conflicts falling within the scope of applicability of common article 3 appear evident. As the material situations are similar, it is, in fact, difficult to determine the lowest level of violence required in order to apply common article 3. Perhaps, possible criteria that look at time, space, and intensity might be helpful. Time is important as sporadic acts of violence cannot amount to an 106 Report pursuant to section 234(a)(4) of the foreign assistance act of1961, as amended, on the issuance of civil strife insurance coverage of overseas investment: the emerging role of OPIC, 34 Fed'n Ins. Couns. Q. 391 (1984). Q.!loted in Ibid., p. 88. 107 Contra see Meron, T., ibid., pp. 73, 83-86, who argues that, for practical reasons, the political intent cannot be an effective distinguishing criterion. 108 Baxter, R.R, "Jus in bello interno: the present and future law" in Moore,]., (ed.), Law and civil war in the modern world, Baltimore 1974. Q.!loted in Ihid., pp. 71-72. 109 As regards the law applicable during such situations, on the one hand it is held that "the combined effect of derogations from the normally applicable human rights and of the inapplicability of humanitarian law results in denial of elementary protections to denizens of states involved in internal conflicts". (Meron, T., "On the inadequate reach of humanitarian and human rights law and the need for a new instrument", 77 A]IL 589 (1983), P.603). Following this view, several human rights workers and scholars have supported the idea of drafting a new set of rules specifically designed to address the issue (See for example, Meron, T., "Draft model declaration on internal strife", 262 IRRC 59 (1988); Gasser, H., "Code of conduct in the event of internal disturbances and tensions", 262 IRRC 51 (1988); 1he declaration on Minimum Humanitarian Standards adopted in TurkulAbo, Finland in 1990; Eide, A., Rosas, A., and Meron, T., "Combating lawlessness in grey zone conflicts through minimum humanitarian standards", 89 AJIL 215 (1995)). On the other hand, a different view holds that the proper application ofthe existing instruments could be a valid safeguard against human rights abuses. In particular, it has been noted that "using the derogation clauses to justify the adoption of new standards is politically unwise and tactically unsound. In fact, emphasizing the potential legal "gaps" created by the derogation clauses might actually serve to create legal gaps where, at present, there are simply ambiguities". (Petrasek, D., "Moving forward on the development of minimum humanitarian standards", 92 A]IL 557 (1998), p. 560). Moreover, as the ICRe remarked, "to merge norms of international humanitarian law and human rights law [...] would risk confusing two distinct, albeit complementary, areas of the law to the detriment of the legal obligations contained in each". E/CN.4!2000/94, para. 9.

From the Lieber Code to the Drafting of Common Art. 3 ofthe Geneva Conventions

57

internal armed conflict, which needs to be protracted. I 10 Space could be relevant as an open struggle limited to a small part of the territory, which leaves almost the whole population untouched by the conflict, would not be classified as noninternational armed conflict. Finally, intensity is the requirement that definitively marks the distinction between internal violence and internal armed conflicts. Although even low intensity armed conflicts can fall within the definition of common article 3, a minimum level of violence, which does not pose a threat either to the government or the civilian population, contradicts the concept of armed conflict. From the above requirements it also follows that the armed groups would need a certain level of organization in order to carry out this kind of military operation. The ICRC Commentary to the Geneva Conventions seems to encourage a broad application of common article 3: "The Article should be applied as widely as possible [... ] It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and enacted in the municipal law of the States in question long before the Convention was signed [... ] However useful [...] the various conditions stated above may be, they are not indispensable, since no Government can object to respecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact respects daily, under its own laws" I I I

During the work of the Diplomatic Conference government delegates, however, made it clear that the higher the threshold of applicability of humanitarian law provisions, the higher the protection afforded to the victims of the internal armed conflicts. They claimed, in fact, that, if humanitarian law provisions were to be applicable also to low level conflicts, governments would only agree to accept minimal restraints. lIZ Today there is a general agreement that common article 3 is also applicable to low-level armed conflicts. As noted by the Inter-American Commission on Human Rights in the Abella case 113

IIO On the importance for the internal violence to be "protracted" in order to be classified as an internal armed conflict see also further below, chapter VI. III Pictet,].,]he Geneva Conventions ofI2 August I949: commentary, Geneva Convention L International Committee of the Red Cross, Geneva 1952, p. 50. II2 Although this might appear somewhat paradoxical, it comes from the past tradition that goes back to Vattel and to the theory of recognition of belligerency. II3 IACHR Report No. S.sl97, case No. II.I37, 30 October 1997, para. 152. Hereinafter cited as the Abella case. (Emphasis and footnotes omitted).

58

Chapter II "Common Article 3 is generally understood to apply to low intensity and open armed confrontations between relatively organized armed forces or groups that take place within the territory of a particular State. Thus, Common Article 3 does not apply to riots, mere acts of banditry or an unorganized and short-lived rebellion. Article 3 armed conflicts typically involve armed strife between governmental armed forces and organized armed insurgents. It also governs situations where two or more armed factions confront one another without the intervention ofgovernmental forces where, for example, the established government has dissolved or is too weak to intervene. It is important to understand that application of Common Article 3 does not require the existence of largescale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory."

It should be noted that whilst a more elaborate definition of the criteria for a conflict to be characterized as a non-international armed conflict would not be of practical benefit, the possibility of a determination by an independent and impartial body that common article 3 is applicable would be of considerable benefit as states usually deny the application ofhumanitarian law provisions with the excuse that the internal conflict has not reached the required threshold. The uncertainty relating to the conditions to be fulfilled in order to apply common article 3, along with the lack of external authority to determine whether the threshold has been reached and the fact that the state ultimately remains the key determinant of the applicability of common article 3, is one of the main reasons of the failure in applying this article. I I4 Common article 3 also imposes obligations upon insurgents that, not being party to the convention, could deny its applicability. Whilst the respect ofhumanitarian provisions by insurgents was not a problem in the context of the just war doctrine or natural law, it poses problems when such provisions are embodied in a treaty. With regard to this issue, it is asked how opposition groups can be legally bound by a convention that they have not signed. According to the Pictet Commentary of the Geneva Conventions, this is possible in that, if the leader of the fighters exercises defacto control, he is bound by the provisions of article 3 by the very fact that he claims to represent the country. Furthermore, it could also be held that, when a government ratifies a convention, it does so on behalf of all its citizens, including those who fight against it. us In particular, states, in a treaty,

114 As noted by the Inter-American Commission on Human Rights in the Abella case, in order to overcome the difficulties in determining the required level ofviolence "what is required in the final analysis is a good faith and objective analysis of the facts in each particular case". Para. 153. 115 Lysaght, C., The scope of Protocol II and its relation to common article 3 of the Geneva Conventions of 1949 and other human rights instruments", 33 The American University Law Review 9 (1983), p. 12.

From the Lieber Code to the Drafting of Common Art. J

ofthe Geneva Conventions

59

can undertake to impose obligations upon their nationals. When they do so, the nationals are bound by the domestic law implementing the treaty provisions. It should be noted, however, that, historically, in some cases, when conduct was very detrimental to the international legal order, states made it criminal under international law and provided permissible universal jurisdiction for it. I 16 In this case they treated individuals as objects of international law. Given this situation, it could be argued that the conduct provided by common article 3 was considered so reprehensible and criminal in character as to require obligations binding on both parties to the conflict. In short, such conduct was considered self-evidently illegal for all the parties to the conflict. Evidence for this can be found, for example, in the provisions relating to internal armed conflicts in the Lieber Code, 117 in the dispatch sent in r824 for the use of the British Minister,II8 in the official statements during the Spanish civil war, I 19 and in the Pictet commentary. 120 Therefore, it might appear that the provisions of common article 3 clarified and consolidated conceptions already widely accepted. This might also explain why, during the negotiation process of common article 3, the provisions binding upon fighters were not extensively debated, whilst most of the discussion focused on the threshold of applicability, which was considered a very sensitive issue. I21 Finally, it is remarkable that common article 3 contains not only basic rules of humane treatment but also an invitation to states to apply all or other parts of the conventions. I 22 This provision is very important as it represents both an implicit admission that common article 3 was not sufficient to afford a full protection to the victims of internal conflicts and an anticipation that international law was already moving towards affording more protection to the victims of noninternational armed conflicts than that offered by the article in question. The drafting of the rules provided in common article 3 was made possible because of the evolution in the elements shaping the law. Now, in fact, they also included domestic military manuals; the work of the ICRC and the start of the human rights movement. Furthermore, it is also worth recalling that, just before the negotiation of the first treaty provisions relating to non-international armed conflicts, when dealing with an internal conflict in another country, even politically oriented sources 116 This was, for example, the case regarding piracy, war crimes, and slavery. See further below, chapter VI. 117 See supra, section 2. 118 See supra, footnote 16. 119 See supra, text accompanying footnotes 44, 46, and 47. 120 See supra, where Pictet, in commenting common article 3, says that this article "merely demands respect for certain rilles, which were already recognized as essential in all civilized countries". (Emphasis added). 121 See also further below. 122 See supra, chapter I, text accompanying footnote 68.

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argued for the application of some rules (e.g., Chamberlain in the Spanish civil war). The reluctance to embody such principles in treaty rules reflected the importance still attached to state sovereignty. By contrast, it might be argued that there were not in depth discussions with regard to the real innovation in international law - Le., the treaty provision that binds non-state actors - as it did not represent a great worry to a politically/philosophically motivated approach and it was not a problem for those whose focus was conduct on the battlefield. I23 The changes, after 1949, in the elements shaping the treaty provisions brought about further changes in the formation and content of treaty laws addressing internal armed conflicts. The next chapter analyses such changes.

123

It was not a problem for those whose focus is the conduct of hostilities, because they are able to go much further since the practical questions they want to see addressed are very similar in international and non-international conflicts.

Chapter III The Evolution in the Elements Shaping the Treaty Law Rules Applicable in Non-International Armed Conflicts

Chapter III analyses the evolution in the elements that, in the second half of the twentieth century, had a relevant impact before and during the drafting of the treaty rules addressing non-international armed conflicts. Considering, however, that, apart from Protocol II Additional to the Genveva Conventions of 1949, the treaty law rules relating to internal armed conflicts, which emerged after 1949, were designed to apply to allforms of armed conflicts, the following sections, in dealing with the evolution in the elements shaping the treaty law of non-international armed conflicts, will have necessarily to address the changes in the processes leading to the developments of the treaty law on armed conflict in general. Whilst this does not detract from the focus of the work, it raises the issue of whether the law of armed conflicts is moving towards an uniform regulation of armed conflicts, (namely, irrespective of their international or internal nature), or whether a similar regulation is only accepted with regard to selected issues. Although no definitive answer is possible to this question, the following chapters of the work will offer evidence for the reader to find a possible answer. The next sections will analyse the evolution in the elements shaping treaty rules relating to internal armed conflicts without focusing on the relationship between them and the treaty law which they have contributed to form; this relationship is examined in the next chapters, when the formation of treaty rules is analysed. This also explains why the period of time from 1949 onwards is considered and not 1949-1980. The elements shaping treaty rules are, in fact, similar both in the period 1949-1980 and 1980-the present; they only differ in their force and impact during the negotiation process. This will appear evident during the analysis of the formation of the relevant treaty norms. I.

The makers ofmilitary strategy and non-international armed conflicts

I

The present section investigates how soldiers and military strategists have analysed the demands of non-international armed conflicts. In particular, it analyAs regards the importance of non-state actors on the formation of treaty rules relating to the law of war, it is to be asked why, if the law of armed conflicts is also made by those who use it, non-state fighters are not included in the treaty law-making process. It could, in fact, be argued that, as they are among those who use the law of

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Chapter III

ses whether self-imposed restraints during internal armed conflicts have been regarded as a good instrument to win the fight or, even if not positively useful, are acceptable because they do not prevent the attainment of the military goal. An analysis of this question is important as the view of the makers of military strategy plays a key role during the drafting of treaty law provisions related to internal conflicts. As, however, the view of the military jurists on how to draft treaty law provisions relating to internal conflicts is shaped by how the hostilities are conducted in the field, it is first necessary to describe briefly how, nowadays, fighters conduct their military operations. I. I.

Internal armed conflicts andguerrilla warfare

Since World War II guerrilla warfare, a kind of fighting characterized by"innovation, surprise and unpredictability",2 has become the predominant form of internal armed conflict throughout the world. Irregular forces that engage in guerrilla warfare use unconventional means and methods ofwarfare, the so-called hit-and-run tactics, as they are usually more poorly equipped and numerically inferior to the regular forces. 3 Fighters'strategy can be summarised by this advice from Sun Tzu: "when the enemy advances, we retreat; when the enemy pauses, we harass, when the enemy seeks to avoid battle, we attack; when the enemy retreats we pursue".4 Through these hit-and- run tactics fighters, even ifcomposed almost entirely of poorly equipped people with little, if any, military training, challenge the formality, which is one of the principal characteristic of professional troops and can

2

3

4

armed conflicts at most, they should be able to express their view on it. It is illustrative that at the Diplomatic Conference ofI974-77 on the Development and Reaffirmation ofHumanitarian Law several National Liberation Movements were allowed to participate. (See further below, chapter IV.I). Obviously, for political and practical reasons it is not possible to make fighting groups negotiate international treaties; their practice, however, could be taken into account at least in ascertaining the state of the law. In this regard it is interesting to see whether the forthcoming study ofthe ICRC on the customary law ofnon-international armed conflicts has taken into account the practice of such groups. Holsti, K.]., 1he State, war andthe state ofwar, Cambridge University Press, Cambridge 199 6, p. 36. In particular, they try to avoid large-scale direct clashes with the governmental forces and concentrate on destroying the enemy's strenght and morale. See WickhamCrowley, T.P., Guerrillas and revolution in Latin America: a comparative study ofinsurgents and regimes since I9S6, Princeton University Press, Princeton 199 2, pp. 3-4. Q!toted in Snow, D.M., Uncivil wars: international security and the new internal conflicts, Lyenne Rienner Publisher, London 1996, p. 72. See also supra, chapter 1.6.

7he Evolution in the Elements Shaping the Treaty Law Rules

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pose a serious threat even to a well-equipped and well-trained army.s Fighters can succeed in challenging a conventional army as they have an excellent knowledge of the territory in which they operate: this information is their strength. In fact, "one of the most important characteristics of a guerrilla war is the notable difference that exists between the information the rebel forces possess and the information the enemies possess". 6 This difference can reduce enormously the capacity offighting ofthe regular forces and can make them lose the initial advantage represented by better equipment and training. Fighters, however, need the support of the local population: "The people are the water in which the partisan fish swims. If the water becomes unhealthy the fish will die".71hus, the support of the local population, which, depending on the situation, could be active or passive support or even coerced support, becomes indispensable in order to compensate for inferior numbers and weaponry. In order to achieve its co-operation, the insurgents need to provoke hostile feelings toward the incumbent government in the local population, so that it becomes easier to convince the population that it is worth fighting for their cause. To pursue this objective, it is necessary to minimize the disruption in the lives of civilians. It is, therefore, very important, for a combatant leader, "to educate his own men in their role ofwinning civilian support". 8 As Mao pointed out formulating the "Eight Points of Attention",9 it is necessary "to make it plain to all irregular soldiers that they are expected to behave not as conquerors or bandits' but as disciplined representatives of a new social and economic order". Terrorism, in fact, as a general policy "is a negative weapon that produces in no way the desired effects, that can turn a people against a given revolutionary movement, and that brings with it a loss of lives among those taking part that is much greater than the return". Due to their weakness, however, non-state forces are unlikely to be able to induce the population to help them spontaneously and are unable to protect it, 10

I I

5 6

7 8

9

10

II

Sollom, A.H., "Nowhere yet everywhere" in Osaka, F.M., (ed.), Modern guerrilla warfare, The Free Press of Glencoe, New York 1962, p. 15. Statement of Che Guevara, quoted in Paret, P. and Shy, ].W. "Guerrilla warfare and US military poliey: a study" in Greene, T.N. (ed.), 1he guerrilla and how tofight him, F.A. Praeger, New York 1962, p. 40. See also supra, chapter I, text accompanying footnote 96. Paret, P. and Shy,J.W. "Guerrilla warfare and US military policy: a study", p. 41. The Eight Points are the following: I) Speak politely; 2) Pay fairly for what you buy; 3) Return everything you borrow; 4) Pay for anything you damage; 5) Do not hit or swear at people; 6) Do not damage crops; 7) Do not take liberties with women; 8) Do not ill-treat captives. Q!Ioted in Walzer, M., Just and unjust wars: a moral argument with historical illustrations, Basic Books, New York 1977, p. 181. See Paret, P. and Shy, J.W., "Guerrilla warfare and US military policy: a study", p. 43· Statement of Che Guevara, quoted in ibid.

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especially if the conflict lasts for a long time. Thus, in order to gain popular support and to persuade the population that the government cannot protect them against the rebels, non-state fighters tend to resort to the use offorce even against civilians,I2 so as to obtain with the instruments of violence what they cannot achieve through the instruments of persuasion. Another important factor that can severely harm the civilian population during an internal armed conflict is the fact that the new type of fighter is very rarely a full time soldier. He is often a worker by day and a fighter by night. Soon after an attack, he hides away his arms and starts working again on his civilian matters, along with the civilian population that has no involvement in the conflict. In this way, the protection of the civilian population is clearly undermined; since there is no longer a clear distinction between civilians and fighters, civilians are put at risk of being killed during an attack against fighters and suffer the most casualties. 13 The dangers for the civilian population have been so summarized by Professor Abi-Saah: "One of the most effective ways of reducing both the mobility and the invisibility of freedom fighters is to cut them off from their mass base. Another is to treat every civilian as a potential or hidden freedom fighter to avoid taking any chances. In both cases, the implications are ominous for the civilian population".14

In these conditions, what is the best strategy for a government to win against the

fighters? That is to say, how can the insurgents be isolated without alienating the population? I.2.

1he strategy ofcounter-insurgency

It appears evident that governmental forces will try to prevent contact between the fighters and the civilian population, precisely because the former need the support of the latter. At the same time, they will have to try to protect the civilians from the fighting. I5 In a non-international armed conflict, since the part of 12

13

14

15

When, however, the terror used by fighters turns out to be too disruptive for the civilian life, it inevitably causes a loss of support, as the case of the Shining Path in Peru shows. For other examples see ibid., pp. 44-45. It has been estimated that, since World War II) 90 percent of the victims of international and non- international armed conflicts have been civilians. Holsti) K.]., 1he State, war and the state of war, p. 37. Abi-Saab, G., "Wars of National Liberation in the Geneva Conventions and Protocols" in 165-IV Recueil des Cours The Hague Academy of International Law, 333 (1979)) p. 426 . See supra, chapter I, text accompanying footnote 91.

1he Evolution in the Elements Shaping the Treaty Law Rules

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population that is undecided or neutral could turn out to be a decisive element for victory, the attitudes of the population become as important to the government as they are to the dissident forces. Therefore, governmental forces must try to win or retain the support of the population and create an environment unfavourable to the movement. In order to achieve this goal, counter-insurgency manuals agree that, first of all, government forces need to neutralize the dissident movement and prove that they are capable of protecting the population. 16 In order to do so the best way would be through persuasion. A counterinsurgency movement should, in fact, try to minimize the distress for the society as much as possible. Otherwise, the use of force could even serve the cause of the insurgents, as a violent repression might have a reverse propaganda effect that could, eventually, tend to reduce the population's confidence in the government. In particular, it is generally agreed that "force and sanctions will soon alienate the population and world opinion and will erode the morale of troops and police involved".17 To hope to be successful, police and military operations must take place with full respect for, respectively, international human rights and humanitarian law. Both fighting parties seem to be aware of it when, in order not to lose legitimacy, they deny having committed any atrocities and state that internationallaw is always respected. The respect for human rights law standards is necessary to gain long-term popular support: in order to diminish the influence of the fighters on the people the governmental authorities will have, in fact, to offer them something better than the opposing groups. 18 Especially today, where the international community is more sensitive to the violation of human rights,19 wherever they happen, the respect of such rights can prove decisive. (For example it could prove very advantageous for the government, should it wish to seek for external assistance). When military leaders, in a counter-insurgency campaign, instruct their men "to respect the people; to help the people; to defend the people...in order to win their confidence and affection and achieve a perfect understanding between the people and the army",20 they are well aware that self-imposed restraints are a key point; it is evident that "a soldier that steals a chicken from a farmer cannot 16

17

18 19 zo

See, inter alia, Valeriano, N.D. and Bohannan, C.T.R., Counter-guerrilla operations: the Philippine experience, Pall Mall Press, London 196z, p. zoo; McCuen,].F., 1be art of counter-revolutionary war: the strategy ofcounter-insurgency, Faber and Faber, London 1966, p. 56. McCuen, ].F., '!he art of counter-revolutionary war, The strategy of counter-insurgency, PP.56-57. By force and sanctions the author intends "stringent curfews, control of movements, re-groupment of people and villages, rationing food, martial law and maximum penalties for aiding revolutionaries or carrying weapons". See also supra, chapter I.z. See further below, section 3. Point 9 of the Vietminh soldier's 'Oath of Honour', quoted in McCuen, ].F., The art ofcounter-revolutionary war: the strategy ofcounter-insurgency, p. 60.

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claim to be the farmer's protector".21 An example is given by the "kindness and kill campaign" of the Burmese Army against the Karen people in 1985 during which the misbehaviour of the army who, sent to villages in order to convince the people not to support rebels, took the occasion to steal food and money, contributed to the failure of the governmental program to win the "hearts and minds" of the people. 22 Thus, it appears that, in today's internal armed conflicts, it is strategically important for governments (and opposing groups) to put restraints upon themselves ifthey want to win the conflict. 23 "Commanders are no longer free to think solely about winning the battle, but must also consider how the battle is won". 24 (During military operations political leaders should als~ keep in mind that, after the conflict, they would need votes to win political elections!). Restraints during the conduct of military operations are represented by the respect for the relevant international human rights and humanitarian law rules applicable to internal armed conflicts. The respect for such rules, minimizing the distress caused by the conflict, can help the government in winning the support of the population. Furthermore, government forces, avoiding an excessive use of force, do not make dissident groups attract the sympathy that goes to those who are treated with unnecessary harshness. Finally, the application of international law standards gives the government, weakened by the internal fight, at least an international credibility that can prove to be important especially considering that internal conflicts can last for a long time. It is, in fact, very difficult to assure a definitive military victory over armed groups as, even if the strategy of fighters can only rarely prove successful in gaining a military victory, it can prove successful in prolonging the conflict indefinitely. It could, therefore, turn out to be an advantage for both parties to have a set of rules that both parties are supposed to respect. The decision to conduct a limited fight would be taken more easily knowing that the other party is also legally compelled to conduct a limited fight.

21 22

23

24

Valeriano, N.D. and Bohannan, T.R., Counter-guerrilla operations: the Philippine experience, p. 201. Laffin,]., War annual I, Brassey's Defence Publishers, London 1986, p. 29. In the same passage, in order to show the main failures of the government forces, it is also reported that, on one occasion, whilst an officer was trying to persuade villagers by words, another was executing a man found with a rebel symbol. In some circumstances, as it is not possible to achieve a military victory, it is necessary to persuade, somehow, the other side to negotiate. As, however, states are usually not good in negotiating with fighting groups, they could force the military establishment to win militarily. On the other hand, it might also happen that the military establishment could push government authorities for continuing the conflict until it is won militarily in spite of little chances of success. This is likely to conduct to a bloody armed conflict, in which the possible victory lasts shortly. Almond, H.H. and Burger,].A. (ed.), 1he history andfuture ofwarfare, Kluwer Law International, The Hague 1999, p. XII.

The Evolution in the Elements Shaping the Treaty Law Rules

67

Given this situation, one needs to ask why, in practice, there are so many violations of the rules by both sides. Possible reasons could reside in the lack of proper military training specifically directed to the situations which the fighters will encounter in practice. They need, in fact, to be trained in the application of the rules of engagement in such situations and the rules of engagement need to be drafted so as to ensure that the army will only resort to armed force in appropriate circumstances. In training them to cope with situations which they will face in the field, regard needs to be held to the effects of fear and to the difficulties associated with a highly mobile and often invisible enemy. Another reason could also reside in the fact that "in circumstances of decentralized combat the professional military organization may lose control over its personnel to such an extent that even ordinary soldiers are led to commit the most vicious acts of barbarism". 5 In addition, each side tries to provoke the other to commit excesses in order to provoke reprisals that would have a counter-productive effect on the population and would show the inability of the other side to protect the victims properly. This is because "a bonus effect ofterror used successfully to provoke countermeasures is that these countermeasures themselves tend to be extraordinary and contribute to the general sense of insecurity and unrest that is the very objective of the terrorist, as well as to reduce the populations confidence in the incumbents". 26 The civilian population is also at risk as both fighting parties use the following argument: "if you are not with us, you are against us". This reasoning has tremendous consequences for the civilian population as it prevents civilians from being neutral and exposes them to reprisals from the opposing side. 27 So, terror tactics become a secret, intentional policy of both fighting sides and self-imposed restraints are rarely used to obtain a military advantage. 28 It should be, however, clear that, "if the civilian population in the area of operations is regarded as an enemy [...] the armed forces and the government have no legitima~e claim on their support". 29 2

25

Falk, R. (ed.), 1he international law ofcivil war, John Hopkins Press, Baltimore 1971,

p.8. 26

27 28

29

Eckstein, H. (ed.), Internal war: problems and approaches, The Free Press of Glencoe, London 19 64, p. 87. On this issue see also further below, the case studies relating to Latin America. On this issue see in particular further below, the case study relating to the armed conflict in Algeria. Valeriano, N.D. and Bohannan, T.R., Counter-guerrilla operations: the Philippine experience, p. 203.

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Chapter III

I.3.

Case studies: Northern Ireland, Latin America, andAlgeria

In order to understand how the strategies described above have worked in practice and how the different strategies used during the conflict have also influenced governmental views on the applicable law, it is worth m~ntioningvery briefly the conflicts in Northern Ireland, Latin America and Algeria. Northern Ireland. In the 1970S, the British government, in order to try to respond effectively to the internal armed violence in Northern Ireland, introduced, under the Northern Ireland Special Powers Act,3 0 internment without trial. Following the introduction of this measure the 1970S were characterized by violations of human rights law, lack of proportionality in the response of the state to the internal violence and lack of adequate supervision of the state powers)I The consequences of such a policy were to turn some "peaceful, non-violent people against the administration ofjustice" and to build support for the paramilitaries. 32 The failure to respect human rights law not only did not help the fight against the dissident forces but also, isolating one community from the governmental structures, had a dangerous counter-productive effect. It, therefore, soon became necessary for the British government to seek to recreate an environment in which all citizens could feel protected by state institutions and, in particular, by the system of justice. Only by addressing the uprising within a framework of international law could, in fact, the British government hope to make clear the differences between the violence used by non-governmental forces 33 and that used by its own forces. The British government learnt that, to maintain legiti-

30

31 32 33

The Special Powers Act was introduced in 1922 in order to give the government a series ofwide-ranging powers in dealing with internal violence. Connolly, E., Politics and policy-making in Northern Ireland, Philip Allan, Hemel Hempstead 1990, p. 43. The Special Powers Act, however, soon turned out to be "an instrument of coercion and control" whose powers were "the most far-reaching restrictions on civil liberties to exist in a democracy". Kader, A., "Iflaw is the enemy...Human rights in Northern Ireland: Britain's responsibilities, The Britain and Ireland Human Rights Project, London 1990, p. II. Kader, A., "Iflaw is the enemy...Human rights in Northern Ireland· Britain's responsibilities, p. 9. Ibid., p. II. Human rights abuses by IRA and other paramilitary forces have been widespread. Among others they included: "the assassination of politicians [... J bomb attacks on civilians, the summary execution of suspected informers, the beating and kneecapping ofpersons suspected ofanti-social practices". Boyle, K. and Hadden,T., Northern Ireland.· the choice, Penguin Books, Harmondsworth 1994, p. 103.

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macy, to regain popular support and to have any chance of winning the fight, at least politically,34 repression had to have its limits. 35 Similar considerations are also applicable to the dissident groups, as shown by the bomb attack in Omagh that killed 28 civilians in August 1998 and provoked strong reactions from both sides. The paramilitary group responsible for the massacre, the Real IRA,3 6 claimed that it was not its intention to kill civilians. According to the group, the tragedy was caused by a failure of the police in understanding the telephone-call that warned ofthe bomb. This statement seems to show that fighting parties are aware that there cannot be any success in an internal conflict without the support of the population and that there cannot be support of the population without the respect for human rights law and humanitarian law. Non-combatant bloodshed is not a winning strategy.

Latin America. In Latin America, since the majority ofrevolts had their roots in a disastrous economic and political situation,37 from their very start they gathered wide support from the local population. As Latin American governments in the past generally tried to deal with the situation without any kind of restraints,3 8 they did not manage to win over the opposition groups. Rather, in some cases, they even lost political power. In order to show how the counter-insurgency strategy developed in this region, it is useful to quote the following address of the Guatemalan government to its population: "There are just two things: one is human rights and the other is Guatemala [...] Ifyou are going to defend human rights, that means you are a foreigner because

34

35 36 37

38

In 1979, in occasion of a bomb attack that killed Lord Mountbatten, the cousin of Qyeen Elizabeth, the commandant of the British army in Northern Ireland, admitted that the IRA could never be defeated militarily. See generally Boyle, K., Hadden, T., Hillyard, P., Law and the state: the case ofNorthern Ireland, Martin Robertson, London 1995. The Real IRA is a splinter group of the IRA. In order to give an idea of the situation in Latin America, suffice it to quote some data from a UN report related to Guatemala, one of central America's wealthiest nations: "the mortality rate in the first year of life is 54 per 1,000 and 100 per 1,000 in the first five years of life; the maternal mortality rate is 24 per 1,000; 50 per cent of the population lacks primary health care [...] 90 per cent of the rural water supply is polluted and the illiteracy rate is 43 per cent". Report by the independent expert, Mrs Monica Pinto, on the situation ofhuman rights in Guatemala, UN Doc.E/CN.4!I994!IO, paragraphs 56 and 58, p. 15. See further below.

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Chapter III that belongs to gringos and other people from out there. But we do not have to take both roads". 39

As a result ofthe disregard for the rules ofinternational law, today there is hardly a Guatemalan alive who cannot name at least a dozen friends, relatives or colleagues killed or "disappeared".40 [T]o eliminate a few hundred guerrillas...the government killed perhaps 10,000 Guatemalan peasants".41 General Rios Montt's4 press secretary admitted and explained the killing of civilians with this statement: 2

"The guerrillas won over many Indian collaborators. Therefore, the Indians were subversive. And how do you fight subversion? Clearly you had to kill Indians because they were collaborating with subversion. And then it would be said that you were ki11.ing innocent people. But they were not innocent. They had sold out to subversion".43

The result of this strategy was that the governing party had little or no popular backing and the Guatemalan fighters were amongst the best prepared and most popularly supported in the region. 44 Similar counter-productive strategies have been used by most Latin-America governments, as shown by an Americas Watch report with regard to the conduct of the civil war in El Salvador: "We assert that the evidence we have gathered makes it clear to us that the armed forces of EI Salvador, ground and air, are engaged in indiscriminate attacks upon the civilian population in conflict zones [...] of EI Salvador. It appears that the purpose ofthese attacks is toforce civilians toflee these zones, thereby depriving the guerrillas ofa civilian populationfrom which they can obtainfood and other necessities [... J At present [...] most of the civilian non-combatants dying

39

Q!Ioted in Americas Watch Report, Guatemala: a nation ofprisoners, New York 1984, front page.

40

Ibid.

41

Simons, M. "Guatemala, the coming danger", 43 Foreign Policy 93 (1981), p. 97. For example, during a five year campaign (1978 - 1983) in the Ixil Triangle, where the army estimated that approximately half the population had became active or potential collaborators with the insurgents, army operations killed or displaced about 25,000 Ixil residents of Mayan descent. Perera, V., Unfinished conquest: the Guatemalan tragedy, University of California Press, Berkeley, 1993, p. 62. General Rios Montt came to power by a coup in March 1982. Q!Ioted in Carmack, R.M. (ed.), Harvest of violence: the Maya Indians and the Guatemalan crisis, University of Oklahoma Press: Norman 1988, p. 57. Wickham-Crowley, T.P., Guerrillas and revolutions in Latin America: a comparative study of insurgents and regimes since I9S6, p. 83.

42 43 44

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in EI Salvador are being killed in indiscriminate attacks by the armed forces in conflict zones". 45

In short, "the Salvadoran armed forces consider[ed] any civilian to be a military target in conflict zones"46 since, according to some statements of the Salvadoran government, civilians who supported the rebels lost their immunity from attack. Although many atrocities have also been committed by non-state fighters,47 their war was generally more limited than the one fought by governmental forces 48 and they managed to keep popular support49 and to obtain a political victory or to deny the government victory. Algeria. In Algeria, in the early 1990S, the secret k.i11ing of civilians and the open denial of the massacres became a tragic paradox. Mter 1992, when the military government cancelled the second round of the political elections and outlawed the Islamic political party that won the first round, a violent armed conflict erupted, in which whole villages were destroyed and thousands of civilians killed. The Algerian armed conflict appeared to be, above all, a war against women, children and undefended men.

45

46

Americas Watch Committee and Lawyers Committee for Human Rights, Freefire: a report on human rights in El Salvador, New York 1984, fifth supplement, pp. 6-7. (Emphasis added). Americas Watch Committee and The American Civil Liberties Union, As bad as ever: a report on human rights in El Salvador, New York 1984, fourth supplement, pp. II-I2.

47

48

49

The suffering that fighters contributed to inflict on the civilian population has been well summarized by an Americas Watch report with regard to the situation in El Salvador: "The army buys or pressures civilians to serve as informers; the FMNL [a fighting group], with or without warning, summarily executes them. The FMLN recruits peasants for a few days' work for the guerrillas and the Army captures and kills them. The Army tries to expand into [... ] FMLN controlled zones with its counterinsurgency programs; the FMLN detains majors perceived to be co-operating with the Army. The FMLN wins over civilians communities and the Army tries to dislodge the guerrilla through arrests and abusive treatment of those perceived to be their sympathisers". Americas Watch Committee, 1he civilian toll, I986-I987: ninth supplement to the report on human rights in El Salvador, New York 1987, last cover page. Although the report refers to the situation in El Salvador, such situations were similar to other Latin America countries. As mentioned above, an exception is represented by the Shining Path in Peru that distinguished itself for its unlimited use of force.It had, however, very little popular support. Although adverse feelings towards fighting groups were not uncommon, they usually did not overcome the resentment of the population against the oppressive governments. It might be argued, however, that fighting groups committed less atrocities only because they had less opportunities to do so.

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Whilst the Algerian government blamed the Islamic party, oudawed in I992, the dissident groups blamed the governmental forces for the indiscriminate killing. The situation was extremely confused, but it seems that both sides used the slaughter in order to reinforce their power. By blaming each other for the indiscriminate killings, they hoped, in fact, to alienate the civilian population from the adversary. The result was that, although it was very difficult to know which party was responsible for the attacks,5 since each side sought to blame the other, it must be assumed that they thought that a reputation for the slaughter of civilians was not a winning strategy. Such reasoning would, however, cause each party to kill civilians in order to blame the other party. In this absurd situation, as usual, innocent people suffered the most. Unlimited repression, coupled with social injustice, especially in Latin America, also brought about a change in the attitude relating to internal armed conflicts of some religious thinkers. 0

2.

The Christian and Islamic traditions and humanitarian law: A different evolution

Although, as explained in the first chapter, from the sixteenth century onwards,s! the influence of the religious tradition in shaping the law applicable to non-international armed conflicts diminished, it is worth mentioning briefly its evolution, as it continues to have an impact on the interpretation and implementation of the existing law. 52 This is particularly true as regards the Islamic influence on the law of war. Although the Islamic concept of the law of war, as developed throughout the centuries, encompasses essential requirements of humanity, the way Islamic law is interpreted and applied in some Islamic States today poses, in fact, a serious threat to the respect for international humanitarian law rules. Unlike the Christian tradition, which tended to distinguish between internal and international armed conflicts,53 the Islamic concept of humanitarian law did not distinguish between internal and international armed conflicts. This thinking derives from the fact that the Islamic tradition holds that the law is laid down by a divine authority; as such, it must be applied without distinction or discrimi-

50 51

52

53

For an overview of the Algerian conflict see Amnesty International, Africa News Online, August 3 and October 28, 1998. See, in particular, the statement of Gentili, who, although Christian, (in particular he was Protestant), exhorted theologians to be quiet in fields which were not concern of them. Furthermore, although nowadays the thinking of religious authorities is not as important as in early times in shaping the law, the view of the Church is still taken into account by political leaders in making some of their decisions. See supra, chapter l.r.

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nation and must be observed by all. 54 The requirements of humanity in warfare encompassed by the Islamic tradition are summarized by the instructions given by Abu Bakr, the first Caliph, to his troops: "Do not commit treachery, nor depart from the right path. You must not mutilate, neither kill a child or aged man or woman. Do not destroy a palm-tree, nor burn it with fire and do not cut any fruitful tree. You must not slay any of the flock or the herds or the camels, save for subsistence. You are likely to pass by people who have devoted their lives to monastic services; leave them to that to which they have devoted their lives".55

Such instructions might appear to be consistent with the further development of international humanitarian law56 and are remarkable, especially considering that they were regarded as applicable to both internal and international armed conflicts. The Islamic concept of jihad, which is regarded as "Islam's instrument for carrying out its ultimate objective by turning all people into believers",57 coupled with some interpretations of the teaching of the Koran, had, however, a negative impact on the conduct of hostilities. On the one hand, jihad gives a "justification" to wage war in order to "turn all people into believers". On the other hand, the verses of the Koran, which incite the Muslims to fight unbelievers with such words: "Slay the idolaters wherever you find them. Arrest them, besiege them, and lie in ambush everywhere for them",5 8 can have the effect of conducting a war regardless of international law standards. 54

55

Sultan, H., "The Islamic concept", in Henry Dunant Institute, International dimensions ofhumanitarian law, Unesco, Paris, with Henry Dunant Institute, Geneva and M. Nijhoff Publishers, Dordrecht 1988, p. 32. Although the Christian belief held a similar view, Christian theologians distinguished between international and noninternational armed conflicts in that they were dealing with the issue of temporal authority. See supra, chapter 1.1. Q!loted in Busuttil,].]., "Humanitarian law in Islam", in XXX the Military Law and Law of War Review, 1991, p. 120. Such instructions, whilst very different from the Christian thinking during the same years, h century), resemble the suggestions of Sun Tzu and the code of Mahabharata. See supra, chapter 1.6. On the issue see generally Sultan, H., "The Islamic concept". Q!loted in Busuttil,].]., "Humanitarian law in Islam", p. 116. This definition, however, is not generally shared. See ibid. Q!loted in ibid., p. 123. Similar wording can also be found in the Bible. See for example the passage which refers to the God-ordained punishment of the people that, in absence of Moses, started to adore a cal£ "And he said to them, Thus says the Lord of Israel, 'Put every man his sword on his side, and go to and fro from gate to gate throughout the camp, and slay every man his brother, and every man his companion, and every man his neighbour'. And the sons of Levi did according to the word of Moses; and there fell of the people that day about three thousand man". (Ex. 32.2728., the Holy Bible, revised standard version, T. Nelson and Sons LTD, London 1957). And Moses asked the Lord of Israel to bless the people who "at the cost of [their]


56 57 58

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Chapter III .

A dramatic example of the use of religion in committing atrocities in war is given by the Iran-Iraq war of 1980-1988 in which there was extensive recruitment of child-soldiers, especially on the side of Iran. 59 In particular, children were sent to the front lines and used to clear minefields.1hey were told that, by fighting, they were given a key to heaven. 60 It should be noted, however, that during the Gulf War of 1990-91, Saudi Arabia, (also an Islamic state), accepted to apply the obligations provided by Geneva Convention III, which included meeting the spiritual needs of Christian prisoners of war.61 Although Islamic law prohibits the killing of non-combatants, by holding that "fighting in this context includes giving advice or encouraging the troops",62 it implies that even women who support their men could fall within the meaning of "combatants" and, as such, they would not be protected by the law of war. It follows that Islamic law could even be interpreted as justifying the strategy of drying up the water in which the fish swims. 63 In addition, all men capable of fighting, whether they fight or not, do not fall within the category of "protected" persons who, according to Islamic law, should be spared during the conduct of hostilities; therefore they could be killed lawfully in war.64 It might appear that the Islamic and Christian traditions evolved in opposing directions, in that the former, earlier than the Christian tradition, held that basic requirements of humanity must be respected in all circumstances, (i.e., both in internal and international armed conflicts). During the twentieth century, however, whilst the Christian tradition held that restraints on the conduct of hostilities also applied in internal armed conflicts and called upon the parties to respect such rules, some interpretations of the jihad have resulted in some wars

59 60

61 62 63 64

sonEs] and brother[s]", killed three thousands of idolaters. (Ex.32.29). See also supra, chapter 1.1. Iran is an Islamic state. On the Gulf war see Dekker, I.F. and Post, H.H.G. (ed.), '!he Gulfwar ofI98o-I988: the Iran-Iraq war in international legalperspective, M. Nijhoff Publishers, Dordrecht 1992. Iran, however, had a different attitude as regards the poison-gas attacks on the Iraqi Kurdish town of Halabja. Although it might have acted so for obvious political reasons, it is significant that Iran protested with the United Nations in order to make the UN establish an international investigation on the chemical warfare against the Kurds ofIraq. On the contrary, both Iraq and Turkey rejected the proposal of the UN Secretary General of sending an international team to investigate whether or not Iraq had used poison gas against the Kurds. See Middle East Watch, Human Rights in Iraq, Yale University press, New Haven 1990, pp. 75-85. See generally Rowe, P. (ed.), 1he Gulf war I990-9I in international and English law, Routledge, London 1993. Busuttil,].]., "Humanitarian law in Islam", p. 122. See supra, section I. Busuttil,].]., "Humanitarian law in Islam", p. 122.

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being fought without restraints and regardless of international law standards. 65 As seen above, some interpretations of the Koran could even resemble the thinking of early authors of the Christian tradition. 66 In order to show the recent evolution of the Christian tradition, it is worth mentioning how the traditional doctrine of the Roman Catholic Church has been challenged in Latin America by the Liberation Theology Movement. The essence of the Liberation theology doctrine is summarized at the start of the Medellin document in which it is stated that "the Latin American bishops cannot remain indifferent in the face of the tremendous social injustices existent in Latin America, which keep the majority of our peoples in dismal poverty, which in many cases becomes inhuman wretchedness. A deafening cry pours from the throats of millions of men, asking their pastors for a liberation that reaches them from nowhere else". 67

Although the call for social change was to be realized by making poor people aware of their rights, as the movement experienced heavy persecution, a few priests went so far from the Christian tradition as to affirm that "the duty ofevery Catholic is to be revolutionary [... and] the Catholic who is not a revolutionary is living a mortal sin". 68 Even if such views were pronounced by a radical priest who joined the guerrilla movement, and they were not generally shared by other representatives of the Liberation Theology Movement, they give an example of the breach opened in the traditional thinking of the Church on the subject. Whilst in the early Middle Ages religious authorities called for a strong repression ofinternal revolts,6 9 in the twentieth century religious authorities risked their own lives to stop repression, as illustrated by the example of Monsignor Romero in El Salvador. The day before he was shot, he said to soldiers:

65

66 67

68 69

For practical examples, in addition to the Iran-Iraq war above mentioned, the recent armed conflicts fought using Islamic concepts in Mghanistan and in the Sudan, and the recent clashes in Indonesia between Christian and Muslim communities could be mentioned. It should be noted, however, that the record of Islamic states vary. Some ofthem have respected the law ofwar. (See for example supra, the case of Saudi Arabia during the Gulf war). See, generally, supra, chapter 1.1. This document was drafted in Medellin, a Colombian city, which hosted the second plenary session of the Latin American Episcopal Conference (CELAM). Olloted in Smith, C., The emergence of liberation theology: radical religion and social movement theory, The University of Chicago Press, Chicago 1991, p. 18. Olloted in ibid, p. 16. Compare this wording with the expression used by Aquinas to describe internal revolts. (Supra, chapter 1.1). See supra, chapter 1.1.

76

Chapter III "I would like to make a special appeal to the members of the Army [...] When you hear the voice of a man commanding you to kill, remember instead the voice of God: '7bou Shalt not Kif!'! God's law must prevail No soldier is obliged to obey an order contrary to the law of God [...] In the name of God, in the name of our tormented people I beg you [... ]: Stop the repression!"7 0

Similarly to the evolution of the Catholic thinking, also an Evangelical minority has called for social change in Latin America and, by doing so, has found itself, sometimes, in support of revolutionary movements.1I The approach of the Protestant movement to the social injustice in Latin America has aimed at finding a way "distinct from both conservative fundamentalism and liberation theology" .1 Progressive evangelicals refused to be identified both with liberation theology and leftist Catholicism. Their approach has been so summarized by one of its leaders: 2

"We call it 'Movement' because it is an informal and supra-partisan association. 'Evangelical' because it is conservative and orthodox in theology, reaffirming biblical authority and the importance of evangelization, conversion and prayer. And 'Progressive' because it is committed to social change".73

By recognizing that, in certain circumstances, revolutions could be justified, Christian movements indirectly were also forced to address the issues related to how hostilities should be conducted. The problems raised by non-international armed conflicts in the second half of the tvventieth century were, however, so dramatic that also other organizations, in addition to the Church, started to address the issue of the conduct of hostilities. Among these, the work of human rights bodies was particularly relevant for the development of the international law of internal armed conflicts.

70 71

72 73

Q!1oted in Lovy, M., The war of gods: politics and religion in Latin America, Verso, London 1996, p. 106. (Emphasis added). For example, the Nicaraguan Evangelical Committee for Aid to Development (CEPAD) helped the FSLN during the insurrection of 1978-79. Ibid., p. 120. Ibid Statement of Paul Freston, one of the leaders of the Brazilian Progressive Evangelical Movement. Qyoted in ibid, p. 121.

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3. The impact ofthe work ofregional and international human rights bodies on the formation ofrules oflaw relating to internal armed conflicts The extent to which international human rights bodies take into account humanitarian law or apply human rights law74 to the conduct of hostilities in armed conflicts is of particular interest as the findings of the relevant inter-governmental human rights bodies, by having repercussions on governments - who are the subjects entitled to negotiate treaties - also contribute to the development of international law. The work of human rights bodies in forming rules of law relating to internal armed conflicts is also of importance as they frame the call for the application of rules of law in internal armed conflicts within a legal context.

1he United Nations and Human Rights. The concern of the United Nations for human rights in time of internal armed conflicts dates back to the International Conference on Human Rights held in Teheran in May 1968. In particular, this Conference called for the protection of human rights in all situations that may occur, both in peace and in war, as well as in uncertain situations that could be qualified as neither peace nor warJ5 GA Resolution 2444 (1969), a product of the Teheran Conference, reads as follows: "7he GeneralAssembly, Recognizing the necessity of applying basic humanitarian principles in all armed

conflicts; Taking note of Resolution XXIII on human rights in armed conflicts adopted on 12 May 1968 by the International Conference on Human Rights; Affirming that the provisions of that resolution need to be implemented effectively as soon as possible; 1. Affirms Resolution XXVIII of XXth International Conference of the Red Cross held at Vienna in 1965, which laid down, inter alia, the following principles for observance by all governments and other authorities responsible for action in armed conflicts: a) that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;

74

75

A discussion on human rights law per se is beyond the scope ofthe study; here the discussion is limited to an analysis of the significance of human rights law for humanitarian law. See Patrnogic,]., "Human rights and humanitarian law", in 91/ 1 Bulletin of human rights, Geneva (1992), p. 4. The United Nations General Assembly addresses the problem of the protection of human rights in time of war under the agenda item "Respect for Human Rights in armed conflicts".

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Chapter III b)

2.

that it is prohibited to launch attacks against the civilian population as such; c) that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible; Invites the Secretary-General, in consultation with the international Committee of the Red Cross and other appropriate international organizations to study: (a) steps which could be taken to secure the better application of existing humanitarian international conventions and rules in all armed conflicts; (b) the need for additional humanitarian international conventions or for other appropriate legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare;

[...J" The call of the United Nations for the protection of individuals in all armed conflicts, (namely, irrespective of their international or internal character),76 has represented a major step forward for the implementation of human rights and humanitarian law provisions in internal armed conflicts. It also gave the impetus to several UN human rights bodies to address the issue, as shown by the following examples. The UN Commission on Human Rights and armed conflicts. The Human Rights Commission started addressing the close relationship between human rights and humanitarian law under the extra-conventional procedures established in order to examine, monitor, and report on human rights situations in specific country situations, (country mechanisms), and on massive human rights violations world-wide, (thematic mechanisms). In particular, such mechanisms have been entrusted either to working groups or independent individuals mainly known as Special Rapporteurs. As regards the country mechanisms, a few examples are illustrative. In his Report on the Human Rights Situation in Kuwait the Special Rapporteur expressed the view that "there is consensus within the international community that the fundamental human rights of all persons are to be respected and protected both in times ofpeace and during periods of armed conflicts")7 In the Report on the Situation of Human Rights in the Sudan, the Special Rapporteur made 76 77

See also supra, chapter 1.2. Report on the situation ofhuman rights in Kuwait under Iraqi occupation, by Mr. Walter Kalin, E/CN.4!I992/26. (Emphasis added).

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evident the link between humanitarian law and human rights addressing the violations of both bodies of law under the same chapter titled "Reported Human Rights Situations"J8 Finally, in the Report on the Situation of Human Rights in El Salvador, reporting on the infringements ofindividual rights during the internal armed conflict, the Special Rapporteur highlighted the problem ofviolations of the right to life that took place in the form of summary executions/ 9 With regard to thematic mechanisms, it is of particular importance to mention the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. In his mandate, the investigation of "violations of the right to life during armed conflicts, especially ofthe civilian population and other non-combatants contrary to international humanitarian law"80 is, in fact, expressly included. The United Nations Commission on Human Rights is also beginning to refer more often to international humanitarian law in assessing state conduct. 81 This is particularly evident in its resolutions. For example, the UN Commission on Human Rights, in expressing its concern about the air raid of Israel in Southern Lebanon and in the West Beka Valley, condemned Israel for its violations of international humanitarian law, in particular for the use of prohibited weapons. S2 As regards situations of internal armed conflicts, the resolution addressing the conflict in Chechnya clearly shows the attention devoted by the Commission to violations of humanitarian law in internal armed conflicts. In this resolution the Human Rights Commission "Gravely concerned by the continued violence in the Republic of Chechnya of the Russian Federation, in particular reports indicating disproportionate and indiscriminate use of Russian military force, including attacks against civilians, which has led to a serious humanitarian situation, Gravely concerned also at reports of attacks against civilians and serious crimes and abuses committed by Chechen fighters, Deeply concerned at reports that gross, widespread and flagrant violations of human rights have been committed in the region, notably in the alleged 'camps of filtration',

78

79 80

81 82

Biro, G., Situation of human rights in the Sudan, Report of the Special Rapporteur submitted in accordance with Commission on Human Rights resolution I99s177, E/ CN.4l'1 997/5 8. Ridruejo, J.A.P., Report on the situation of human rights in EI Salvador, AI44l'671, 26 October 1989, para. 22-52. Ndiaye, B.W., Question of the violation of human rights andfundamental freedoms in any part of the world, with particular reference to colonial and other dependent countries and territories. Extrajudicial, summary or arbitrary executions. E/CN.4l'1997/60, para. 9 (f), p. 6. Dennis, M.]., "The fifty-second session of the UN Commission on Human Rights" 91A]IL 167 (1997), p. 168. UN Commission on Human Rights, Res. 1996/68, 23 April.

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Underlining the need to respect the principle of proportionality and to observe international human rights and humanitarian law in situations of conflict and in activities undertaken against terrorism, Deploring the high number of victims and displaced persons and the suffering inflicted on the civilian population by all parties, including the serious and systematic destruction of installations and infrastructure, contrary to international humanitarian law,

[...J 3.

Call upon all parties to the conflict to take immediate steps to halt the hostilities and the indiscriminate use of force and to begin without delay the holding of a political dialogue and effective negotiations with the aim of achieving a peaceful solution to the crisis, which fully respects the territorial integrity and the Constitution of the Russian Federation;

[...J 5.

Request the Russian Federation to disseminate, and ensure that the military at all levels has a knowledge of, basic principles of human rights and international humanitarian law;

[...J 9.

Also urge the Government of the Russian Federation to allow international humanitarian organizations [... J free and secure access to areas of internally displaced and war affected populations in the Republic of Chechnya and neighbouring republics, in accordance with international humanitarian law, and to facilitate their activities and the delivery of humanitarian aid to the victims in the region;

[...J II.

Request the High Commissioner for Human Rights to consult with the Government of the Russian Federation in order to ensure the implementation of the present resolution and to promote confidence-building measures based on respect for human rights and humanitarian law."83

From this short overview, it may be expected that the Human Rights Commission will expand its focus on humanitarian law even more in the future. 84

The role of UNtreaty bodies: in particular the Human Rights Committee. By adhering to a treaty, states could assume an international obligation to submit a periodic 83

84

E/CN.4!Res/2ooo/58. On this resolution see also further below, chapter VI. The Commission on Human Rights also addressed the situation in Chechnya in 2001 with resolution E/CN.4!RES/200r/24. See generally O'Donnell, D., "Trends in the application of international law by United Nations mechanisms", 324 IRRC 48r-503 (1998). It should be noted, however, that in spite of the continuos violations of human rights and humanitarian law, the UN Commission on Human Rights has not adopted a Resolution on Chechnya in 2002.

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report. 85 In these reports, they need to identify the issues of particular concern raised by the treaty body and explain the measures taken in order to guarantee the enjoyment of the rights provided by the treaty. Therefore, if the treaty bodies request reports regarding the enjoyment of rights during a non-international armed conflict, the state in question should provide the requested information and tackle the issue related to the respect for rights during such conflicts. Furthermore, as the examination of a state report usually ends with concluding observations or comments, which mostly reflect the state of international law, states are also pushed to deal with issues related to internal armed conflicts as developed in internationallaw. These comments might also have repercussions upon other governments that are facing similar situations. In particular, in order not to face international exposure, a state involved in an internal armed conflict, when asked for a report, could spontaneously apply the observations given by the treaty body in another country report, which deals with the same type of situation. Similarly, the interpretation oftreaty provisions given by human rights bodies might have an impact on the development of the rules of humanitarian law, even if expressed in terms of human rights law. In this regard the general comment86 on article 4 ofthe International Covenant on Civil and Political Rights (ICCPR), adopted by the Human Rights Committe is of particular importance. Article 4 87 85

86

87

See, for example, the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of Discrimination against Women; the Convention Against Torture, the UN Convention on the Rights of the Child. General comment on article 4 as adopted at I950th meeting on 24 July 2001, CCPRI C/21/Rev.r/Add.nThe Human Rights Committee adopts general comments in order to interpret and clarify the treaty provisions. Article 4 reads as follows: "1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6,7,8 {paragraphs I and 2),n,I5,I6 and 18 may be made under this provision. 3. Any State Party to the Present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the Present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation." Unlike the European and the American Convention on Human Rights that expressly refer to the war as a situation that could allow the application of

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of the ICCPR is of interest for the law of internal armed conflicts as it envisages derogation measures in situations which are likely to be characterized as noninternational armed conflicts. Commenting on article 4 the Human Rights Committee held that "Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles oflegality and rule oflaw at times when they are most needed. [...] States must act within their constitutional and other provisions of law that govern such proclamation and the regime of emergency powers; it is the task of the Committee to monitor that the laws in question enable and secure compliance with article 4".88

Furthermore, the Committee, stated that "Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. [ ... ] The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. IfStates parties consider invoking article 4 in other situations than armed conflict, they should carefully consider thejustification why such a measure is necessary and legitimate in the circumstances". 89

This comment on article 4 is extremely important considering that most human rights abuses occur when states use the derogation clause in situations of internal strife, but they deny that an armed conflict is taking place within their borders. Serious risks for the enjoyment of individual rights are, in fact, due to the fact that, in the majority of cases, either the internal disturbances and tensions are not so serious as to use the derogation clause or they are so severe that they

88 89

the derogation clause, there is no such reference in the Covenant on Civil and Political Rights. According to the travaux priparatoires, although it was recognized that surely a state of war creates a public emergency that would "threatens the life of the nation", the omission was made for symbolic reasons in that "[w]hile it was recognized that one of the most important public emergencies was the outbreak of the war, it was felt that the covenant should not envisage, even by implication, the possibility ofwar, as the United Nations was established with the object of preventing war" ro GAOR Annexes, UN Doc. AJ2929 (1955), para. 39. CCPR/C/2r/Rev.r/Add.II, para. 2. Ibid., para. 3. (Emphasis added).

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also require the application of humanitarian law provisions,9 at least of common article 3 to the Geneva Conventions. In the former case, governments use states of emergency fraudulently, that is as a pretext, for example, to put restrictions on the work of the political opposition. In the latter case, states deny the seriousness of the armed conflict so as not to admit their weakness and not to afford the humanitarian law guarantees to dissident armed groups. The wording of the general comment,9 making public emergencies caused by situations other than armed conflicts "suspicious", might contribute to close the alleged gap of protection occurring in situations that would give rise to a "public emergency which threatens the life ofthe nation", but in which the threshold of common article 3 of the Geneva Conventions has not yet been reached. Furthermore, it would also be important in shaping states'views on the issue. In particular, as state parties to the Covenant should include in their reports, submitted under article 40, sufficient information about their law and practice on states of emergency, they will have to take into account the opinion of the Committee that, as shown by this general comment, is likely to accept as lawful only the proclamation of states of emergency caused by an armed conflict. As the situation envisaged by the ICCPR is similar to the one envisaged by other human rights treaties, the use of the derogation clause at a "common article 3 threshold" might also have an impact on the work of other human rights treaty bodies. Finally, the general comment on article 4 is very important not only for clarifying the possible threshold of applicability of this article, but also for making clear that there is a "non derogable core of derogable rights", which continues to apply even during a state of armed conflict. In particular, 0

1

"The fact that some of the provisions of the Covenant have been listed in article 2, as not being subject to derogation, does not mean that other articles in the Covenant may be subjected to derogations at will, even provided that a threat to the life of the nation exists". 9 2 4, para.

It might appear that the human rights machinery, once created, develops a momentum of its own as it can evolve differently from states'desires to such an extent that it could be impossible for states to stop or even to control it. States can decide on the establishment of human rights bodies and on the scope of their jurisdiction but, once established, states cannot keep them under their direct

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In that they are so serious as to amount to non-international armed conflict. See also supra, chapter 11.8. In a previous draft of the general comment, however, the Committe stated, more incisively, that ''A state of emergency in the meaning of article 4 is usually at hand only in situations of armed conflict, whether international or non-international".

CCPRlC/7o/R.12. CCPRlC/21/Rev.11Add.II, para. 6.

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control. This is also because individuals working in such bodies must sit in an independent capacity. In short, independent bodies, once created, become a force themselves. For example, when human rights bodies were established, states may not have anticipated that such bodies would deal with situations that involve internal armed conflicts. In order to show the impact of the use of the human rights machinery in situations of armed conflicts, it is worth mentioning that, recently, following these developments, military lawyers have started to pay more attention to human rights law. This is because the work of human rights bodies has made it clear that the military establishment is no longer untouched by human rights provisions, as the following examples of case-law show. 1he European Convention on Human Rights and armed conflicts. Similarly to the Human Rights Committee, other international human rights bodies have also started to call both for the respect of human rights law and for the respect of humanitarian law in time of armed conflicts. This is because it is becoming more and more evident that the organs that monitor the respect for human rights law in "normal times" cannot suspend their monitoring during armed conflicts; rather, it is in this time that their control is even more important. The jurisprudence of the European Court of Human Rights on the derogation clause envisaged by article 15 93 of the European Convention is particularly rich. In the context of derogation, a state maya) claim a state of emergency and claim to derogate; b) claim a state of emergency and not derogate; c) not claim a state of emergency but derogate; d) not claim a state of emergency and not claim to derogate, but, in fact, have an emergency. In order to claim a state of emergency and derogate lawfully, as explained in the Lawless case, the dangerous situation must affect

93

Article 15 provides: "1. 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 Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts ofwar, or from article 3,4 (paragraph r) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right to derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are being fully executed."

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"the entire territory or a part thereof: for example, with regard to the measures of derogation adopted by the Government of the United Kingdom and Northern Ireland, the European Commission of Human Rights and the European Court of Human Rights, as well as the Human Rights Committee, held that a geographically limited emergency could affect the population as a whole and constitute a threat to the life of the nation".94

In order to reach this state it is not necessary that the life of the nation "as such is threatened with extinction, but one in which there is such a breakdown of order or communications that organized life cannot, for the time being be maintained".95 In the Greek case, the European Commission defined a public emergency as follows: 1.

2.

3.

4.

It must be actual or imminent; Its effects must involve the whole nation; The continuance of the organized life of the community must be threatened; The crisis or danger must be exceptional in that the normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order shall result to be inadequate. 96

Given these conditions, it should follow that low-level civil disturbances cannot amount to a public emergency as they do not put at risk the fundamental elements of statehood.97 The fact, however, that it is the state itself to judge when such conditions have been fulfilled could pose a serious risk for a proper application of internationallaw standards. With regard to this issue, the European Court of Human Rights, in the case Ireland v. United Kingdom, has made it clear that states are not free to evaluate what constitutes a threat to the organized life of the community, but are subject to the scrutiny of international bodies. In particular, it has established that states do not enjoy unlimited power but are allowed only a margin of appreciation in assessing the situation: 94

95

96 97

European Commission of Human Rights, Series B, 1960-1961, quoted in Despouy, L., the administration ofjustice and the human rights ofthe detainees: questions ofhuman

rights and states ofemergency, E/CN.4!SUb.2/1997/19 para. 78, p. 19· Daes, E.1., 7he individual's duties to the community and the limitations on human rights andfreedoms under article 29 of the Universal Declaration of Human Rights, UN Doc E/CN4!Sub 2/432/Rev 2 (1983) para.42 (b), p. 192. "Greek case", 12a Y.B. Eur. Ct. Human Rights (1969), para. 153. Hartman, J.F.," Derogation from human rights treaties in public emergency", 22 HIlL 1(1981), p. 16.

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"It falls in the first place to each Contracting State, with its responsibility for the 'life of (its) nation to deter~ine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article IS § I leaves those authorities a wide margin of appreciation. Nevertheless, States do not enjoy an unlimited power in this respect. The Court[...]is empowered to rule on whether the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision". 9 8

Where the state does not claim a state of emergency but the situation is one which satisfies the criteria for derogation, the supervisory machinery does not derogate for the state. As stated in the case Cyprus v. Turkey, "The derogation provided in Art. IS was a "right of the State concerned": Art. IS(]) spoke of the High Contracting Party "availing itself of this right of derogation". Ifthe State concerned did not exercise the right ojderogation no otherperson could invoke it, and neither the Commission nor the Court could apply it ex officio. Turkey had not invoked any right of derogation in the present case, although she had done so in the past on other occasions". 99

Furthermore, the Commission, recalling the Lawless case, remarked that "the obligation to inform the Secretary General of a measure derogating from the Convention is 'an essential link in the machinery provided in the Convention for enduring the observance ofthe engagements undertaken by the High Contracting Parties'''. roo The Commission also found "that, in any case, Art. IS requires some formal and public act of derogation, such as a declaration of martial law or state of emergency, and that, where no such act has been proclaimed by the High Contracting party concerned, although it was not in the circumstances prevented from doing so, Art. 15 cannot apply". ror

"Ireland v. United Kingdom", 2S Pub. Eur. Ct. Human Rights, SeriesA, (1978), para. 207. See also "Branningan and McBride v. United Kingdom", 17 E.RR.R. (1994), para. 43 and "Aksoyv. Turkey)', 23 E.HR.R. (1997), para. 68. 99 European Commission of Human Rights, Cyprus against Turkey, Report oj the Commission, (Adopted on 10 July 1976), para. 511, p. IS8. (Emphasis added). 100 Ibid, para. 526, p. 161. 101 Ibid., para. 527, p. 162. 98

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Even if it is up to each contracting state to determine "how far it is necessary to go in attempting to overcome the emergency... the Court must give appropriate weight to relevant factors such as the nature of rights affected". The supervisory machinery shall, therefore, asses not only if the situation allows the state to derogate, but also why each single right has been derogated and if there is a proportionality rule between the limitation and the aim pursued by the government. 1°3 It follows that, before taking any derogating measure states must carefully assess the situation on the ground and consider all the possible solutions; only when there is not any other valuable alternative can they suspend fundamental rights. In the case of Brogan and Others v. UK the European Court made it clear that the UK would have to derogate under article 15 ofthe European Convention ifit wanted to keep in place the measures for detention without judicial review. 1°4 In particular, although the Court accepted that different situations, (in this case terrorism), affect the way article 5(3) is implemented, it found that the UK legislation was not in conformity with the Convention requirements and that the period of detention exceeding 4 days before being brought before a judge was too long. As a result of this finding the UK derogated. To show, however, that, even if a state derogates, it is not free to evaluate which measures are most appropriate, the Court, in the case of Brannigan and McBride v. UK, 5 found that the UK had not exceeded its margin of appreciation in applying article 5(}) only because it provided satisfactory safeguards. 106 In particular, the Court held that 102

10

"having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation". (Para. 66).

I02

103

104

105 106

''Aksoy v. Turkey", para. 68. The concept of proportionality "indicates an implicit obligation to act in good faith" that is that "a government is not to make opportunistic use of an emergency to take repressive action against political rivals or disfavoured minorities [...] The objective cast of this phrase implies that necessity, rather than the government's subjective evaluation, should determine legitimacy of a derogation". Hartman, ]., "Derogation from human rights treaties in public emergencies", p. 17. Brogan and Others v. UK, Judgment of 29 November 1988. Judgment of 26 May 1993. As the Court explained: "Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention". (Para. 62.).

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The main safeguards against abuse encompassed the remedy of habeas corpus; the right to consult a solicitor after forty-eight hours from the time of arrest; the ability to inform a relative or friend about their detention and to have access to a doctor. Even with such safeguards, however, governments cannot extend excessively the period of detention without judicial guarantees, 107 as shown in the Ahoy case, in which the European Court of Human Rights held that '~Although

the Court is of the view [...] that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for 14 days without judicial intervention.This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture. Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorist in South East Turkey rendered judicial intervention impracticable". (Para. 78).

Finally, the European Court, by investigating cases in the context of internal armed conflicts has made it clear that the military operation must be carried out so as to minimize the recourse to lethal force. l08 The respect for human rights law in internal armed conflicts might have, in fact, an impact on the conduct of military operations. 9 In particular, in the case Ergi v. Turkey, the European Commission expressly found that the military operation must be planned 1

0

"not only in the context of the apparent targets of an operation but, particularly where the use offorce is envisaged in the vicinity of the civilian population, with regard to the avoidance of incidental loss of life and injury to others". I lO

Furthermore, the Court found that Turkey failed to take all the feasible precautions in the choice of means and methods of a security operation against opposing groups in order to minimize incidental loss ofcivilian life and that the mere knowledge of the killing gave rise ipsofacto to an obligation to carry out an investigation into the circumstances surrounding the death. I II

I 12

107 This shows that, similarly to the findings of the Human Rights Committee in the draft general comment on art. 4, there is a "non-derogable core of derogable rights". 108 "McCann and Others v. UK", ECHR Series A 324, para. 194. 109 See Akdivar and Others v. Turkey,judgment of 16 September 1996. 110 Ergy v. Turkey, Commission Report of zo May 1997, para. 145. III Ergy v. Turkey,Judgment of z8 July 1998, para. 79. lIZ Ibid., para. 85. See also Kaya v. Turkey,Judgment of 19 February 1998, para. 91.

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7he American Convention on Human Rights and armed conflicts. The impact that human rights bodies can have in shaping the law applicable during the conduct of hostilities in internal armed conflicts is also illustrated by the reports of the Inter-American Commission of Human Rights with regard to the human rights situation in Uruguay and Argentina. In particular, in the former report, the Inter-American Commission stated that "overall, the Commission has repeatedly condemned practices by groups which, in an attempt to impose their political and ideological opinions, resort to all forms of criminal activity such as murder, kidnapping, assault, maintenance of private jails, and cruel treatment. On the other hand, [... J the Commission has generally maintained that the authorities cannot deprive subversives ofthe minimal treatment to which enemy combatants andprisoners are entitled both during international wars and during armed conflicts that are not international in nature". 113

Similarly, in the report regarding the human rights situation in Argentina the Inter-American Commission held that "it is equally clear that certain fundamental rights can never be suspended, as in the case, among others of the right to life, the right of personal safety, or the right to due process. In other words, under no circumstances, may governments employ summary execution, torture, inhumane conditions of detention, or the denial of certain minimum conditions of justice as the means to restore public order. These measures are proscribed in constitutions and in international instruments, both at the regional and at the global level". 114

As regards the cases investigated by the Inter-American system for the protection of human rights, the view expressed by the Inter-American Commission on Human Rights in the Abella case 115 is of particular importance. It expressly states,

II3

Report on the situation

of human

rights in Uruguay, DENSer. L/V/II.43, Doc.19,

Corr.r, (1978) p. 8. (Emphasis added). II4 Report on the situation of human rights in Argentina, DENSer. L/VIII.49, Doc. 19, Corr. 1 (1980). lIS IACHR Report No. S.sl97, case No. 11.137,30 October 1997. See also Velasquez Rodriguez case, (Judgment of 29 July 1988) as regards the practice of disappearances and the violation of the right to life; the case of Neira Alegria v. Peru regarding the disproportionate use of force by the Peruvian authorities in quelling a prison uprising, which resulted in the killing of three detainees, (Judgment of 19 January 1995); "ElAmparo" case, which deals with the killing of 14 fishermen from the town of"EI Amparo" in Venezuela, (Judgment of18 January 1995) and the case ofAloeboetoe et. AI. v. Suriname regarding the killing of seven civilians by military forces, (Judgment of 4 December 1991).

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in fact, its competence to apply directly humanitarian law provisions in dealing with state parties to the American Convention. "Before addressing petitioner's specific claims, the Commission thinks it useful to clarify the reasons why it has deemed it necessary at times to apply directly rules of international humanitarian law or to inform its interpretations of relevant provisions of the American Convention by reference to these rules. (Para. r57). [.00] [B]oth Common Article 3 and Article 4 of the American Convention protect the right to life and, thus, prohibit, inter alia, summary executions in all circumstances. Claims alleging arbitrary deprivations of the right to life attributable to State agents are clearly within the Commission's jurisdiction. But the Commission's ability to resolve claimed violations of this non-derogable right arising out of an armed conflict may not be possible in many cases by reference to Article 4 of the American Convention alone. This is because the American Convention contains no rules that either define or distinguish civilians from combatants and other military targets, much less, specify when a civilian can be lawfully attacked or when civilian casualties are a lawful consequence of military operations. Therefore, the Commission must necessarily look to and apply definitional standards and relevant rules of humanitarian law as sources of authoritative guidance in its resolution ofthis and other kinds of claims alleging violations of the American Convention in combat situations. To do otherwise would mean that the Commission would have to decline to exercise its jurisdiction in many cases involving indiscriminate attacks by State agents resulting in a considerable number of civilian casualties. Such a result would be manifestly absurd in light of the underlying object and purposes of both the American Convention and humanitarian law treaties". (Para. r6r).

Finally, similarly to the Human Rights Committee and to the European Court, the Inter-American Court ofHuman Rights has also specified that even a potentially derogable right could have a non derogable core. In particular, it recognized the importance of a remedy to guarantee the respect of fundamental rights in its Advisory Opinion No.8, issued on 30 January 1987, in which it stated that "given the provisions of Article 27 (2) of the American Convention, the legal remedies guaranteed in Article 25(r) (amparo) and 7(6) (habeas corpus) of the Convention may not be suspended, because they are judicial guarantees essential for the protection of the rights and freedoms whose suspension is prohibited, in conformity with the said provisions, under states of emergency".

As it appears, whilst the military, having their focus on the situation on the ground might have found the application of certain rules in internal armed conflicts expedient, and recent Christian authors found their application dictated by

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considerations of humanity, human rights bodies found it in agreement with the existing law. However, what is considered expedient, human, or legal is not necessarily reflected, later on, in treaty law. For the next step it is necessary for states to have an own interest justifying the drafting of a treaty or, if they do not have such an interest, external pressure, which overcome their own interest not to draft a treaty. NGOs have proved to be a powerful means of pressure. 4.

The role ofNon-Governmental Organizations (NGOs) in the formation ofthe treaty law ofnon-international armed conflicts

The phenomenon of non-state actors attempting to influence government policies on issues of particular interest to them is not new. Suffice it to mention the role played by the Church throughout the centuries. II6 In the second half of the twentieth century, however, there has been an increase in the number II ? of such organizations. Key factors for the development ofNGOsII8 are represented by I) more disposable income from private individuals willing to support the goal of NGOs; 2) increase in the number of literate people, who, therefore, can become aware of armed conflicts conducted throughout the world; 3) the development of means of communication, especially television, which, by covering with fast and visual images a given issue of concern of NGOs, helps theirworkenormously;I20 4) changes in the space available to NGOs in international fora;I2I 5) the use made by governments of such organizations. In particular, some governments have started to use NGOs as a source of expertise. Several N GOs focus specifically on issues of international law relating to human rights (in particular, civil and political rights) and humanitarian law; others concern themselves primarily with development and relief 119

II6 See supra, chapters 1.1, 11.7, and 111.2. II7 See Lopez, G.A., Smith, J.G., and Pagnucco, R., "Globalizing human rights: the work of transnational human rights NGOs in the 1990S", 20 Human Rights Quarterly 379-412 (199 S). lIS As it can be inferred by their name, technically, NGOs are private organizations composed of private citizens or corporate bodies. Malanczuk, P., Akehurst's modern introduction to international law, Routledge, London 1997, p. 96. 119 See further below. 120 For the importance of the media coverage before and during the drafting of treaty law, see chapter V.2. 121 For examples, NGOs, which have been given a consultative status at the UN, can attend meetings of the UN Economic and Social Council, submit written statements relevant to the work of the Council and make an oral presentation to the Council during the meetings. For the conditions required to attain such a status see Consultative relationship between the United Nations and non-governmental organizations, Resolution 1996/31.

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As regards the formation of international treaty norms, the work of N GOs has become increasingly important before and during the drafting ofa new treaty. NGOs, by seeking data on human rights and humanitarian law violations or by working in the field to help the victims of conflicts and of human rights violations, become more quickly aware than governments of the need to draft new law. I22 Among the NGOs, which started the campaign to ban landmines, along with NGOs mainly concerned with legal issues, there were, in fact, also several relief NGOs, whose awareness of the need to ban landmines came from their field work. As will be seen further below, in chapter V, the case of the Ottawa treaty is illustrative in showing how different kinds ofNGOs can bring their own experience and expertise in achieving common goals. When aware of the need for new rules NGOs start lobbying either through UN fora or directly upon governments in order to push for new international law standards or for the effective implementation and enforcement of the existing ones. 123 In particular, the source ofinformation provided by NGOs to UN bodies, alongside their lobbying of the Human Rights Commission, has proved to be extremely helpful in the UN standard-setting process. Furthermore, by giving the necessary impetus to the Human Rights Commission 124 in drafting new law, NGOs indirectly influence governments, as the Commission on Human Rights is a governmental body. As regards the direct lobby upon governments, it is important for a NGO to be able to approach government representatives. This ability mostly depends on its force and credibility and on the level of democracy reached by the country in which they approach government officials. A dictatorial country will have, in fact, a different response to the request of a meeting with a NGO from a well-

122 123

124

See supra, chapter II, text accompanying footnote 28. N GOs also address the behaviour oforganized armed groups. As, however, in the field of human rights, entities other than governments do not have the same international responsibility as governments, N Gas condemn their actions by using a different terminology to make clear the difference between them and the state. In particular, as appears, for example, from the terminology used by Amnesty International and Human Rights Watch, they do not use the term "violation" to condemn the acts of non-governmental entities. Instead, they use the word "abuse", which, whilst indicating a "wrong-doing", does not suggest that the fighting groups might have such a high status to be recognized as a state-like organization. On the contrary, Amnesty International does apply its mandate in full when the non-governmental entities fulfil certain requirements that make them appear similar to governmental entities. In particular, Amnesty International speaks of "human rights violations" when the entity acts in pursuit of a political program and has effective authority over the population. Furthermore, it recognizes that the control of a part of the territory of the country might also be an asset in evaluating whether or not non-state organizations have government-like characteristics. Among the UN bodies, which deal with human rights, the role of the Human Rights Commission in the standard-setting process is of particular importance.

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established democratic country. It is, therefore, of no surprise that the most effective and powerful NGOs are based in democratic, Western countries. The lobby ofNGOs is also important at a later stage, in putting pressure upon governments in order to sign, ratifY and implement treaty law. Furthermore, NGOs continue shaping international law even after its drafting, using the available procedures provided under some treaties and pushing for innovative interpretations of the law. Although, however, the pressure exercised by NGOs in the last decades has been very important in the drafting of human rights law, 125 only recently have NGOs started to be also concerned with issues relating to the international law of armed conflicts. During the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, (1974-1977), although several NGOs were present in the Working Group for the Development of Humanitarian Law, there is no evidence that they lobbied governments intensively in order to make them reach an agreement. It is significant that out of the 27 NGOs present in the working group at the Diplomatic Conference of 1974-1977, 10 were religious organizations. This is because religious organizations had their roots in ancient institutions such as the Church, therefore, they were already well-organized and capable of taking part in a negotiation process which took a long time and required financial investment. Among the NGOs present there were international organizations such as Amnesty International, the Association for the Study of the World Refugee Problem, the International Electro-Technical Commission, etc., whose mandate did not expressly address issues related to armed conflicts. This could explain why the drafting process of Protocol II Additional to the Geneva Conventions was basically left to the states and to the ICRC, as the only external actor able to influence the treaty law making process. The fact that human rights NGOs have only recently become concerned with the law of armed conflicts may be explained by the fact that this branch of law is extremely technical and requires expertise, which only big and powerful NGOs can afford. Furthermore, the development of the law of armed conflicts was a field of law traditionally left to the ICRC. Understandably, NGOs started to be concerned particularly with branches of international law, which were not already covered by other non-state actors, such as human rights. The increased number of non-international armed conflicts and the effect of such conflicts on 126

125

126

Suffice it to mention that the pressure exercised by prominent international organizations such as Amnesty International and the International Commission ofJurists on governments to adopt a Convention against Torture (1984) was at the basis of the negotiation process of this treaty. Similarly, the Convention on the Right of the Child was adopted in response to a wide movement to protect children. (1989). See further below, chapter IV.I.

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issues oftraditional interest for NGOs, however, made them aware ofthe need to address armed conflicts specifically. The voice of "international civil society" in the formation of treaty rules in armed conflicts started to appear in 1980,127 on the occasion of the drafting of the Convention on Certain Conventional Weapons, which, in fact, was partially drafted as a response of public opinion to the war in Vietnam. 128 From the 1980s on, the participation of "international civil society" in the decision making process has continued growing and culminated in the adoption of the Ottawa Convention Banning Landmines and of the statute of the International Criminal Court. These treaties have been celebrated as a tremendous change in the way international treaty law is made. In particular, it has been argued that such steps represent a "democratization" of the international law making process as international law appears to be made with the contribution offorces that come "from below". In the 1990S a strong contribution to the work of human rights groups has also been given by the development of the Internet, which made the relevant information immediately available and updated. Whilst an evaluation of the role of NGOs in the formation of treaty law of non-international armed conflicts will only be possible in the next chapters, when the formation and development of treaty rilles applicable to non-international armed conflicts is analysed, it is now necessary to focus on how NGOs reach their goals. In particular, in order to persuade governments that there is a need for new treaty law or better implementation of the existing rules, NGOs need to provide reliable and impartial information. Therefore, the task of gathering relevant data and of publishing it adequately is an essential one. In armed conflicts, however, it can prove extremely difficult. Information. At the international level, the reluctance ofgovernmental representatives to criticise their counterparts when they are not moved by political reasons, coupled with the general lack of independent sources of information have made N GOs playa key role. When governments, in fact, in order to keep their bilateral

127 In 1978 Human Rights Watch was also established. Human Rights Watch is one of

the very few INGOs whose mandate is committed to address violations of humanitarian law. In particular, "in internal wars it documents violations by both governments and rebel groups". 128 See further below, chapter IV. The term "international civil society", as used in this work, encompasses the movements that succeed in creating a form of international pressure, which, eventually, leads to the formation of international law standards. Such movements, in general, to be effective, need to be represented by competent and professional organizations such as NGOs.The public pressure/opinion in se is, in fact, something evanescent and volatile, if not organized in proper forms. It does not exist per see It just represents individuals sparse all over the world, particularly committed to certain goals. These individuals, however, to express their international law concerns, tend either to support existing NGOs or to create new organizations.

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relations on a friendly basis, are unwilling to address human rights violations that take place in another country, N Gas can represent the only possible alternative. It follows that "the NGO seeks to uncover what the Government seeks to hide". 12 9 As a result, in situations in which NGO information is not available or where the NGOs are either unable or unwilling to generate political pressure upon the governments concerned, the chances of a weak response by the international community are radically increased. 13° During an armed conflict, NGOs, together with journalists, remain the principal source of information. Whilst, however, they are able to provide the kind of information for human rights monitoring, they are not able to provide the kind of evidence needed for humanitarian law violations, which entail criminal responsibility. They are, in fact, not well placed to provide - and would find it very hard to obtain - the kind of evidence needed for criminal proceedings against individuals. In internal armed conflicts even the gathering of information for human rights monitoring is difficult. The access to the theatre of operations is, in fact, often denied and, anyway, extremely dangerous. In addition, NGOs often do not have adequate staff and means to engage in wide-ranging monitoring activities during an on-going conflict. Another problem for NGOs resides in the fact that they cannot adequately protect their local source of information. Although their primary source is represented by individuals who escape from armed conflicts, it often happens that local people are imprisoned or killed after co-operating with NGOs. In such circumstances, NGOs could fail to gather consistent and reliable information in order to start a credible world-campaign. This would eventually have repercussions on their activities as "their credibility depends on the reliability of their information and their credibility is their most important asset".13 Finally, in order to have an impact upon governments, NGOs must make public the information that they gather. 1

Publicity. It is generally recognized that once NGOs bring an issue to the world's public attention it becomes more difficult to ignore the alleged violations. For example, it has been argued that the problem of disappearances attracted the attention of the UN only because of the denunciations of non-governmental organizations.

129 Rodley, N.S., "The work of non-governmental organizations in the world-wide promotion and protection of human rights", 90/1 Bulletin ofhuman rights (1991) United Nations, Geneva, p. 87. 130 Steiner, H.]. and Alston, P., International human rights in context: law, politics, morals, text and materials, Clarendon Press, Oxford 199 6, p. 456. 131 Rodley, N.S., "The work of non-governmental organizations in the world-wide promotion and protection of human rights", p. 87.

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In particular, since governments know that their international reputation is an important factor in their long-term international legitimisation,13 they do not want to appear in reports as governments that violate individual rights. Due to the work of NGOs, nowadays governments are aware that they cannot violate human rights without some fear of international exposure. In addressing humanitarian law violations, NGOs could play the same historical role as the one played with regard to human rights. Ifviolations of the law ofwar are properly investigated and publicized, every party to the conflict could, in fact, try to do its best since the party that more closely adheres to humanitarian norms is more likely to attract international support. 133 Furthermore, the risk of a public report on the atrocities committed could playa deterrent role as the greater the degree of barbarity used in the conduct of military operations, the more difficult the process of normalisation of relations is likely to be. Therefore, if fighting parties are keen to be involved in the post-war process of the country, they will fear that violations of the laws of war during the conduct of hostilities could have repercussions on their possible future political ambitions and increase the risk of prosecution, at least after the mid 1990S. With regard to the importance of making the humanitarian law violations public, the problem related to the inaccuracy and exaggeration ofthe given information should be mentioned. It might, in fact, happen that, in order to attract international attention, humanitarian organizations are tempted to inflate the numbers of the victims of the conflict or to exaggerate the excesses committed by the fighters. Inaccuracy of the information could be mainly due to the fact that 2

it is extremely difficult to gather precise information in that NCO personnel are

unable to carry out such a task during an on-going conflict. However, when the figures differ a lot among the different sources of information, they cast a doubt on the credibility of the organizations involved, which could, eventually, have a counter-productive effect on their missions. In particular, they could be charged with intentional lack of objectivity in order to push the international community to intervene and, as a result, they could alienate the support of the host government and even risk being expelled by the country involved. 134 Independently, however, of their real impact, which can be better evaluated in the next chapters, it remains the case that in the second half of the twentieth century there was a change in the sources addressing internal armed conflicts. The conduct of hostilities started to be addressed by new actors not concerned with the role and function of the state, but with the situation on the ground. Furthermore, there was also a change in the importance and content of the 132 See supra, chapter I, footnote 39. 133 See supra, section 1.2. 134 On the issue see Von Flue, C. and Daudin, P., (ed.), Protection toward professional standards: report of the workshop (I7-I9 March I998), International Committee of the Red Cross, Geneva 1998.

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sources analysed in the previous chapters, such as the religious thinking. This had the effect of making the formation of treaty rules the result of complex negotiations in which states were no longer the only actors. This is clearly shown by the statement of the Canadian Ministry of Foreign Affairs, that, in working to achieve a strong International Criminal Court, said: "With lessons learned from the successful campaign for a treaty banning land mines, we are engaging not only political leaders but also non-governmental organizations, media I35 and citizens around the world". 13 6 The next chapters analyse to what extent the change in the elements shaping the law affected the formation of the treaty rules applicable in internal armed conflicts and their content.

135 In the second half of the twentieth century the media have played a remarkable role in alerting public opinion on issues of international interest. The impact of the media has dramatically increased in the last decades due to the increasing speed and availability ofinformation.1he use oftelevision, in addition to radio, has played a key role in shaping public opinion, as television also provides visual images, which have a strong impact on individuals. For example, during the Balkan war, the media coverage was so extensive that the US envoy Richard Holbrooke later admitted: "the reason the West finally, belatedly intervened was heavily related to media coverage. The Bosnia coverage really made a difference". (Qyoted in Thompson, M., Forging war: the media in Serbia, Croatia, Bosnia and Herzegovina, University of Luton Press, Luton 1999, p. 3).1his seems to be confirmed by an American columnist who expressly stated that "The only thing the NATO allies will pay for is to separate the factions and prevent more mass murder. They will pay to keep Bosnia offCNN, but that's all". (Qyoted in ibid., p. 4). The pressure exercised by media, however, has only a short-term effect and media coverage is often selective. The media focus attention on a specific situation, not on a whole issue of international law interest. For example, the media coverage of the recent Balkan wars contributed to make states do something about it. Eventually, among other measures, states also established an international tribunal. As will be seen further below, the work of the tribunal contributed to shape the law of internal armed conflicts, but it cannot be said that the news media had a direct influence on the formation of treaty law. The media might be important in shaping public opinion, they are a tool used by N GOs to achieve their goals, but they do not shape the law itsel£ For this reason here it is not dealt with in detail. 136 Qyoted in Forsythe, D.P., Human rights in international relations, Cambridge University Press, Cambridge 2000, p. 164.

Chapter IV 1949-1980: Protocol II Additional to the Geneva Conventions of 1949 and the Conventional Weapons 1

Convention

z

Chapter IV analyses the drafting process of Protocol II and of the Conventional Weapons Convention) In particular, it analyses the impact of the elements analysed in chapter IlIon the formation of the rules oflaw relating to internal armed conflicts during the period 1949-1980. It is limited to this period of time as the impact of the formative factors on the law of non-international armed conflicts was different in the period 1949-1980 from the period 1980-present,4 which is dealt with in the next chapter.

I.

The drafting history of Protocol II

The need to develop the provisions of common article 3 arose during the period from 1949 to 1970, as practical experience had shown that the basic rules of humane treatment provided by this article were not sufficient5 in addressing the dramatic increase in internal conflicts since World War II. Not only had, in fact, internal armed conflicts increased in number, 6 but also the conduct of hostilities in such conflicts had proved to be atrocious. Suffice it to mention that eighty percent of the victims of armed conflicts since World War II have occurred in internal conflicts? and most of such victims have been civilian casualties. Furthermore, the pressure to lay down a set ofrules addressing internal

2

3 4

5 6

7

The formal title of the Protocol is "Protocol Additional to the Geneva Conventions of I2 August I949, and relating to the Protection of Victims of Non-International Armed Conflicts". Hereinafter "Protocol II". The formal title of the Convention is "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". Hereinafter "Conventional Weapons Convention". See also further below, Chapter V.2. See supra, chapter III. See supra, chapter 11.8. Almost 77 percent of the I64 wars occurred since World War II have been internal. Holsti, K.]., 1he state, war and the state of war, Cambridge University Press, Cambridge I996, p. 21. See also supra, chapter III, footnote I3. Forsythe, D.P., "Legal management of internal war: the I977 Protocol on non-international armed conflicts", 72 A]IL 272 (I978), p. 272.

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armed conflicts also mounted because of the importance attained by Movements of National Liberation on the international scene. Several movements were even invited to take part in the work of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law (1974-1977).8 This was an indication of the consideration paid by the international community to wars of national liberation. Nowadays organized armed groups would, in fact, not be allowed to take part in the formation of treaty norms. 9 Many delegations were, however, not interested in a treaty relating to all kinds of internal armed conflicts; they were only interested in affording international guarantees to such movements. (At that time, wars of national liberation were regarded as internal). Furthermore, at that time, NGOs had just started to develop and they did not concern themselves with humanitarian law issues in full. IO Thus, the input for new standards was basically left to the work of a few committed states, the ICRC and the United Nations. In particular, in 1957, the ICRC, at the XIXth International Conference of the Red Cross, started to address the issue of relief in the event of internal disturbances and called for the development of the provisions of common article 3 with regard to medical care. A few years later, in 1965, the International Conference of the Red Cross adopted resolution XXXI addressing, specifically, the protection ofvictims of non-international armed conflicts.The resolution read as follows:

"The XXth International Conference of the Red Cross, considering that during armed conflicts not of an international character and internal disturbances occurring in recent years, it has not been possible to ensure sufficient protection for the victims of these conflicts and in particular the prisoners and detainees, 8

9 IO

Among others the African National Congress (ANC), the Mozambique Liberation Front (FRELIMO), the Palestine Liberation Front (PLO), the South West Mrica People's Organization (SWAPO), the Zimbabwe Mrican National Union (ZANU) and the Zimbabwe African People's Union (ZAPU).They were invited by resolution 3 (I) of the Conference, which was based on the consideration that the "progressive development and codification of international humanitarian law applicable in armed conflicts is a universal task in which the national liberation movements can contribute positively". Official records ofthe Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (I974-I977), Volume I, Federal Political Department, Bern I978, p. 7. See supra, chapter IILL See supra, chapter III. 4. For example, Amnesty International, which is the largest world-wide campaigning movement that works in the field ofhuman rights, has only recently started, without changing its mandate, to address humanitarian law violations; whilst Human Rights Watch, which is one of the very few NGOs specifically committed to address violations of humanitarian law, was established after the drafting of Protocol II, in I978.

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considering further that the Geneva Conventions of 1949 contain in Article 3, common to them all, the provisions applicable to these conflicts, having taken note of the report of the Committee of Experts convoked by the International Committee of the Red Cross to meet from 25 to 30 October 1962 ,II urges the ICRe to continue its work with the aim ofstrengthening the humanitarian assistance of the Red Cross to victims of non-international conflicts, recommends that Governments of States parties to the Geneva Conventions and National Societies support these efforts in their respective countries".

In the same year the ICRC also adopted Resolution XXVIII addressing the protection of the civilian population against the dangers of indiscriminate warfare.This resolution is of particular interest as it deals with means and methods of warfare in the area of internal conflicts and calls upon the governments to reach an agreement on the issue. As mentioned supra, in chapter III, the United Nations, from the Teheran Conference of 1968 onwards, also started focusing on the protection of the rights of the individual in internal conflicts and to give the input for the drafting of new provisions. Finally, from 1969 onwards, the ICRC convened groups of experts in order to study the development of humanitarian law in non-international armed conflicts. The conclusions of the expert meetings were presented at the Conference of Government Experts, which took place in 1971. In this Conference, two different approaches, which were also debated during the Diplomatic Conference of 1974-77 emerged. In particular, on the one hand, it was held that humanitarian considerations urged the drafting of a single international treaty addressing both internal and international armed conflicts and, on the other hand, it was argued that it was necessary to draft a specific treaty addressing internal armed conflicts and to establish a clear definition of such conflicts. During the Diplomatic Conference of 1974-1977 on the development of humanitarian law, the only two powerful actors, which lobbied for the adoption of broad provisions addressing internal armed conflicts, were the ICRC and the UN. From the very beginning it appeared evident that, apart from the Scandinavian countries - which held that the same provisions should address both internal and international conflicts - most states did not want to commit themselves to undertake international legal obligations with regard to the conduct of hostilities in all kinds of internal armed conflicts. As mentioned above, the interest in drafting specific treaty provisions for non-international armed conflicts was based on the concerns raised by the probI2

II

12

It is referred to the report of the Committee of experts convened to study the question of aid to the victims of internal conflicts. Norway was the leading delegation in supporting this view.

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lem ofwars ofliberation. When it was decided I3 to regard the "anti-colonial wars of national liberation" as international wars,I4 many delegations lost interest in drafting an Additional Protocol dealing exclusively with internal armed conflicts. The countries which most opposed to the draft of Protocol II were China, India, Indonesia, Philippines, and Iran along with some Mrican and Latin American countries. IS In particular, it is noteworthy that Mexico who, during the drafting of common article 3 supported, along with Norway and the Soviet Union, the proposal of the IeRC,I6 had a negative attitude toward the adoption of Protocol

II. Even if some Latin American countries, along with a few developing countries, supported the adoption of Protocol II, they were in favour of a high threshold and of a low standard ofprotection. By contrast, during the drafting history of common article 3, government delegates generally held the view that the higher the threshold of applicability of humanitarian law provisions, the higher the protection afforded to the victims of non-international armed conflicts. I7 As regards Socialist countries, they seemed to support the adoption of Protocol II, even if they put so much emphasis on the concept of state sovereigntyI8 as to beg the question of whether their view was really in agreement with the draft Protocol II that was being discussed. I9 Among the Western countries, which had a negative attitude toward the adoption of Protocol II, there were France, Canada20 and the United Kingdom, which was facing the conflict in Northern Ireland. 13

14

15

16 17 18 19

20

The agreement on this decision was particularly influenced by the presence at the Conference of states which were not yet independent. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) in its article 1(4) expressly states that "The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations". Abi-Saab, G., "Non-international armed conflicts", in Henry Dunant Institute, International dimensions of humanitarian law, Unesco Paris with Henry Dunant Institute Geneva and M. Nijhoff Publishers, Dordrecht 1988, p. 227. The ICRC suggested that international and internal armed conflicts were to be regulated by the same provisions. See supra, chapter II. 8. See supra, chapter 11.5. On the issue see Abi-Saab, R., Droit humanitaire at conjlits internes: origines et ivolution de la reglementation internationale, A. Pedone ed., Paris, with Institute Henry Dunant, Geneva 19 86, p. 134The reluctance of France and Canada to address internal armed conflicts was based respectively on the fact that France was facing problems "dans ses territoires d'Outre

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Throughout the Diplomatic Conference, the ICRC, supported by Scandinavian countries led by Norway, continued pressing for the adoption of a draft Protocol II which envisaged a high level of protection for both fighters and civilians. In particular, it proposed a protection similar to that afforded in international armed conflicts. In the deliberations of the conference over four years the provisions provided by the ICRC were even broadened. The final result of the debate in the committee was a proposed instrument of 49 articles. 22 As soon as the 1977 session started, it was, however, clear that "there was considerable dissatisfaction with the legal length of the text as well as with the fact that it ventured into domains which [... states] considered sacrosanct and inappropriate for inclusion in an international instrument". 23 Government delegates that had a negative approach toward Protocol II feared that the adoption of such an instrument would internationalize their internal problems and give a pretext for foreign intervention. The objections have been well summarized by this hypothetical example of the view of government officials, which explain the main reasons that made several countries oppose the development of humanitarian law in internal armed conflicts: 21

"My government knows that needlessly attacking innocent civilians tends to strengthen dissident movements and will take strong measures against such misbehaviour by our armed forces. But to prescribe an international norm prohibiting attacks against civilians and civilian objects implicidy suggests that it is permitted to attack security personnel and objects. [...] This is why we are reluctant to accept the Protocol II you have proposed.". 24

Thus, Protocol II started to become a story of"disappointed expectations". 25 Only the redrafting ofthe text in which the parts relating to the means and methods of combat, relief and execution of the Protocol were deleted, along with the elimination of all the provisions that could make the parties to the conflict appear to

21 22

23 24

25

Mer" whilst Canada opposed the project as formulated and, in particular, the section dealing with means and methods of combat. Ibid., p. 133. Abi-Saab, G., "Non-international armed conflicts", p. 228. Ihid. CDDH/SR·49, p. 4, quoted in ibid. Solf, A.W., "Problems with the application of norms governing interstate armed conflict",13 GA.jINT'L & COMEL. 291(1983), p. 292. (Emphasis omitted). Compare these considerations with the objections made during the negotiation process of common article 3. See supra, chapter 11.8. Lysaght, C., "The scope of Protocol II and its relation to common article 3 of the Geneva Conventions of 1949 and other human rights instruments", 33 '!he American University Law Review 9 (1983), p. 21.

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be on the same level, eventually made it possible to reach an agreement on the adoption of Protocol II. 26 Considering that the factors, which influenced the drafting process of Protocol II, were mainly conceptions ofstate sovereignty as developed in the past, the content of the provisions of Protocol II reflects a political authority focus. This was hardly mitigated by the recent international awareness for the respect of human rights in all circumstances and by draft proposals of the IeRC. The crucial provision of Protocol II is embodied in article I and pertains to its material field of application. It requires such a high threshold for its applicability as to require dissident armed forces to create a sort of state-like organization. In particular, this article states that "1.

2.

This Protocol [...] shall apply to all armed conflicts [...] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts".

Unlike the threshold for the application of common article 3,2 7 Protocol II is clearly intended to apply only to high level internal armed conflicts. 28 In particular, the armed conflict must take place between the armed forces of a state and dissident armed forces. Therefore, the armed conflicts that take place between different armed groups, without including governmental armed forces, are not covered by Protocol II. Furthermore, according to Protocol II, not all kinds of conflicts between governmental armed forces and dissident armed groups can be regarded as armed conflicts. The dissident armed forces must be, in fact, well organized and co-ordinated and be under responsible command, even if this does 26

27 28

Bothe, M., Partsch, K.]. and Solf, W.A., New rulesfor victims of armed conflicts: commentary on the two I977 Protocols Additional to the Geneva Conventions of I949, M. Nijhoff Publishers, The Hague 1982, pp. 606-607. See supra, chapter 11.8. Although Protocol II develops and supplements common article 3, it does not modify "its existing conditions of application". This means that the threshold for the application of common article 3 remains unchanged. The JCRC pushed for reaching an agreement on this provision in order not to undermine the protection offered by common article 3 during low level armed conflicts. See Sandoz, Y., Swinarski, C., and Zimmermann, B., (ed), Commentary on the Additional Protocols of 8 June I977 to the Geneva Conventions ofI2August I949, IeRC with M. NijhoffPublishers, Geneva 19 87, p. 135°·

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not mean the necessity of a rigid military hierarchy. Although the extent of the territory that must be under the control of the fighters is not specified, it must be sufficient to carry out sustained and concerted military operations and to implement the Protocol. These conditions not only require a high intensity armed conflict, which is a rare characteristic of today's armed conflicts,2 9 but they also exclude conflicts where the "adverse party" is an underground fighting group, which only sporadically carries out actions of the hit-and-run type. 30 Part II, relating to humane treatment, in addition to the rights embodied in common article 3 of the Geneva Conventions, includes the prohibition of collective and corporal punishments, acts of terrorism, slavery and the slave trade in all their forms and pillage. Its provisions appear to be more elaborated than those of article 3 and inspired by articles 6, 7 and 8 of the International Covenant on Civil and Political Rights. 3 This is illustrative ofthe impact of human rights law on the formation of rules of law relating to internal armed conflicts)2 Article 5 relates to "persons whose liberty has been restricted". As it does not distinguish between different categories of persons and the different reasons why a person's liberty has been restricted but its provisions apply to all persons whose liberty has been restricted for reasons related to the armed conflict, it makes it clear that there are not particular "privileges" for fighters)3 The fear of governments that the extension of combatant privileges to member of dissident groups would have encouraged rebellion was insuperable. 34 Therefore, with regard to these provisions of Protocol II, a "human rights approach" over a "law of war approach" prevailed. 35 However, they still represent a progress because it means that even detained ex-fighters have to get basic rights. The lack of "special status" for organized armed groups also allows states to provide criminal prosecution of those who have taken part in the hostilities, for the mere fact of their participation in the fighting. It follows that article 6 does not provide prisoner of war status to captured fighters; it only provides a few judicial guarantees. Finally, echoing Vattel,3 6 the last paragraph of article 6 recommends states "to grant the broadest possible amnesty to persons who have !

29 30 31 32 33

34 35 36

See supra, chapter 111.1. Kalshoven, F., Constraints on the waging of war, International Committee of the Red Cross, Geneva 1987, p. 138. Abi-Saab, G., "Non-international armed conflicts", p. 234. See supra, chapter 111.3. In international armed conflicts combatant privileges include immunity from criminal prosecution for acts ofwar (that in "normal times" could be crimes under domestic law) unless such acts violate the laws and custom of war. See supra, chapter 1.5. See Abi-Saab, G., "Non-international armed conflicts", pp. 230-236. See supra, chapter I, text accompanying footnote 78.

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participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict". As this provision could lead to impunity, if fighters were to get an amnesty for violating the rules in the Protocol, the drafters intended to limit its applicability to the fact of having taken part in the fighting. In part III, Protocol II lays down basic norms for the protection of the wounded, sick and shipwrecked and for the protection of religious personnel, medical duties and transport, and the respect of the distinctive emblem. Finally, part IV of Protocol II concerns norms relating to the civilian population. This section, in effect, puts limits on the conduct of hostilities, with the object of protecting civilians. This is the first time that treaty provisions expressly put limits on the conduct of hostilities in internal armed conflicts, as opposed to protecting victims. Although the norms embodied in Protocol II can be considered "an innovation and a great step forward in the protection of civilians",37 the lack of provisions regarding the recognition of the existence of "combatants" and of "military objectives" makes "the provisions on the protection of the civilian population [...] hang somewhat in the air".3 8 Furthermore, the deletion of the provisions similar to those embodied in article 57 of Protocol 139 in the final version of article 13 "leaves the protection of civilians against the effects of attacks in a somewhat primitive condition, particularly in the light of the high threshold provided in Art.1".40

As appears from this short overview, the regulation of non-international armed conflicts, in the period 1974-1977, was still a sensitive issue. States seemed to be very jealous of their sovereignty and unwilling to accept internationallaw obligations relating to internal armed conflicts. Unlike the provisions embod37 38

39 40

Abi-Saab, G., "Non-international armed conflicts", p. 236. Kalshoven, F., Constraints on the waging of war, M. Nijhoff Publishers, Dordrecht 1987, p. r44. However, the protection of civilians implies that there is a group of noncivilians. Article 57 of Protocol I requires precautions in attacks and makes the principle of proportionality legally binding. Bothe, M., Partsch, K.J., and Solf, W.A., New rules for victims of armed conflicts, p. 670. Furthermore, during the drafting of the article relating to the protection of the civilian population the words "which are additional to other applicable rules of international law" were deleted. In particular, it was argued that "there is very litde conventional international law with respect to non-international armed conflicts other than (common) article 3 [ ] which contain no provisions pertinent to the subject matter of this article of [ ] Protocol II". Ibid. Following these conclusions, even authoritative commentators held that "[t]his view, which certainly was shared by a majority of delegations, militates against the suggestion that in a high intensity civil war of the type contemplated in Art.r of Protocol II, customary international law rules which require precautions in attack and those prohibiting the attacks which disregard the principle of proportionality are incorporated into Protocol II through the concept of general protection". Ibid., p. 677.

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ied in Protocol I Additional to the Geneva Conventions, in Protocol II there is nothing relating to the enforcement of its provisions. States even pushed for the adoption of a threshold of applicability so high that it resembled the conditions required for the recognition ofbelligerency.4 From the considerations of humanity, which permeated the international scene during the first half of the 20th century,4 2 to the internal conflicts-oriented atmosphere that made possible the drafting of new standards in the last two decades, Protocol II was drafted in a transition period in which states, eventually, "won over" the victims of internal armed conflicts. As seen in the previous chapter, important changes in the international sphere started, in fact, to occur only in the last two decades. It seems that those who were involved in the negotiations of Protocol II represented the political authority interest and the military interest. Although what matters most to the military is that the same standards should apply to all parties, whatever those standards are, in 1977 that was not reinforced by civil society concerns about the content of those rules. The balance was in the hands of those who took a political authority focus. Given this situation, it is of no surprise that the conditions surrounding the adoption of the Conventional Weapons Convention, in 1980, were similar to those surrounding the adoption of Protocol II. However, as regards the adoption of the Conventional Weapons Convention, in addition to the role played by likeminded states, the ICRC and the United Nations, public opinion also started to play an important role.43 1

2.

The background to the Conventional Weapons Convention and to its Landmines Protocol

The Conventional Weapons Convention and its Protocols were originally only applicable to international conflicts. It is nevertheless necessary to examine the Convention and the Landmines Protocol in this context in order to trace the evolution of the international concern regarding anti-personnel mines and other military weapons. 44 The interest of the UN in limiting the means and methods of warfare, both in international and internal armed conflicts, was already apparent during the Tehran Conference of 1968. In particular, during this conference, the General 41 42

43 44

See supra, chapter II.I. See supra, chapter 11.6. See supra, chapter 111.4. Protocol II to the Conventional Weapons Convention deals, in fact, with the prohibitions or restrictions on the use of mines, booby-traps and other devices. According to article 4 of the Conventional Weapons Convention, a state, to become party to the Convention, shall express its consent to be bound at least by two Protocols.

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Assembly invited the Secretary-General to study "the need for additional humanitarian conventions [...] to ensure the prohibition and limitation of the use of certain methods and means ofwarfare".4S1he study, released in November 1969, focused, in particular, on the necessity to address the legality of the use of napalm. 46 The interest, at an international level, in the use of specified weapons started following the media reports on the use and effects of such weapons in Vietnam. In fact, "while certain novel [...] conventional weapons were introduced in the Vietnam war, the overall picture of the methods and means employed in that war was probably not so entirely different than that arising from other recent armed conflicts [...]. What made it stand out among all these conflicts was the ample media coverage it received, as well as the acute political controversies it aroused".47 In 1971, Sweden, "inspired by public outrage in its own country over the Vietnam war",4 8 and by its "political views about the Vietnam conflict and questions of national security",49 called for a Conference to explore the possibility of concluding a treaty banning or restricting the use of certain weapons. Following the call of Sweden, in September 1974, the ICRC organized a Conference of Government Experts 50 in order to address the issue. The Conference took place in Lucerne. This Conference contributed "to an increase in knowledge and understanding of the subject",SI in particular of anti-personnel mines, but it did not succeed in reconciling the different views. It was, however, just a start. A second session of the Conference, was, in fact, organized by the ICRC in Lugano, in February 1976. At this Conference, whilst the outcome was unsatisfactory, an emerging consensus started to appear. In particular, "some modest but unmistakable progress could be registered in more than one area, notably, those of incendiary weapons and mines and booby traps".S2 Following the Lugano Conference, the 45

UN Doc. NCONF.33/41, quoted in Roach, A.]., "Certain Conventional Weapons Convention. Arms control or humanitarian law?", 105 Military Law Review 3 (1984),

46 47

Ibid. Kalshoven, F., ''Arms, armaments and international law", 191-11 Recueil des Cours, The Hague Academy of International Law, 183 (1985), p. 225. See also chapter 111.5. and chapter V.2. Prokosch, E., the technology of killing: a military andpolitical history of anti personnel weapons, Zed Books, London 1995, p. 148. Roach, A.]., "Certain Conventional Weapons Convention. Arms control or humanitarian law?", p. 6. It included diplomats, military officers, and doctors. Prokosch, E., The technology of killing: a military andpolitical history ofanti personnel weapons, p. 148. Words pronounced by the President of the Conference. Qyoted in ibid., p. ISS. Kalshoven, F., ''Arms, armaments and international law", p. 241.

P·7·

48 49 50 51 52

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task of addressing the issue of prohibitions or restrictions of the use of specific conventional weapons was then left to the 1974-1977 1. During this Conference, although it was not possible to achieve a general agreement, a resolution53 was adopted, which recommended that a UN Conference be convened in 1979, in Geneva, in order to address the issue. Finally, in October 1980, a "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" was adopted. 54 Whilst the Convention provides the legal framework, its three annexed Protocols contain a ban and restrictions on specific weapons. 55 It should be noted that "there is hardly any meaningful public record of the negotiations of this Convention. There are verbatim records available only of the twelve plenary sessions of the conference, yet the real negotiations took place in unrecorded private discussions and in the many sessions of the three working groups".5 6 In the first session of the Conference the main issue debated referred to the application of the Convention to National Liberation Movements and their rights and obligations: the issue of concern which had attracted most debates during the 1974-77 Diplomatic Conference was still on the agenda.s 7 Only in the second session were specific provisions, including landmines, dealt with.s 8

53 54 55

56 57

58

Resolution 22 (IV). It was adopted by consensus. In particular, Protocol I on Non-Detactable Fragments prohibits the use of any weapon the primary effect of which is to injure by fragments, which in the human body escape detection by X-rays. Protocol III prohibits in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons. It allows to attack military objectives with incendiary weapons only if the military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective. It also provides rules aimed at protecting forests from the damage caused by incendiary weapons. Protocol II - the Landmines Protocol- is dealt with further below. Roach, A.]., "Certain Conventional Weapons Convention. Arms control or humanitarian law?", pp. 3-4· See supra, section 1. Although the use of landmines dates back to the American civil war, only after World War I - also because of the improvement of the technology - landmine warfare became an important part of military doctrines. Landmines were initially developed as a defence to protect tanks. Later on, however, as antitank mines could be easily removed by enemy troops, anti-personnel mines were developed to impede the removal of antitank mines and to prevent enemy troops from entering protective minefields. United States Department of State, Bureau of Political-Military Affairs, Hidden killers, the globallandmines crisis, United States Department of State, Washington DC 1994, p. 3.

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Chapter IV

The specific concern in restricting the use of landmines arose as the massive use of such devices, along with the advent of new dispensing systems59 caused a dramatic drop in the marking and recording of minefields. In particular, the creation of remotely delivered mines made it clear that their use could be indiscriminate. 60 This had a tremendous impact not only on the civilian population, but also on the troops that mined the field, as an unrecorded minefield also represents a danger for them. The interest in landmines also arose as the long term consequences of landmines scattered during World War II on the civilian population in mined areas of Europe, the Middle East and North Africa had become apparent. Furthermore, the use of anti-personnel mines had dramatically increased as such weapons were cheap and easily acquired. Finally, states were ready to limit the use of mines in order to curb their use by terrorist groups, which had risen in those years. 61 Although a few delegations held that it was necessary. to prohibit the production, stockpiling and transfer of the conventional weapons under consideration, "the majority regarded such prohibitions as completely unrealistic and beyond the mandate of the conferences".62 Eventually, the military view,6 3 which regarded mines as "necessary defensive weapons"6 4 and an "effective and operationally almost indispensable weapon", 65 prevailed. In this area, in fact, those who seem to influence the negotiation process most are the military, because it concerns the situation on the ground; but in this area, unlike general rules on the protection of civilians, the military do not want to give things up. It should be 59

For example mines were scattered by air, artillery, tank weapons much more quickly

60

and delivered more remotely than previously. Carnahan, B., "The law of land mine warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons", l0S Military Law Review, 73 (r984),

P·7S· 6r 62 63

64

65

Ibid. The Arms Project and Physicians for Human Rights, Landmines: a deadly legacy, Human Rights Watch, New York r993, p. 267. As summarized by Robert Gard, the principal reasons given to justifY the military utility of anti-personnel mines are that such weapons are useful in order: "(r) to shape the battlefield by denying the enemy access to mined areas, and to channel enemy forces into positions vulnerable to friendly attack; (2) to defend borders against infiltration and positions or facilities against hostile action; (3) to enhance the effectiveness of other weapons by halting the movement of enemy forces, thereby increasing their vulnerability; and (4) to protect friendly forces by deploying mines to deter or delay an enemy attack". Gard, R.G., "The military utility of anti-personnel mines", in Cameron, M.A., Lawson, R.J., and Tomlin, B.W., To walk withoutfear: the global movement to ban landmines, Oxford University Press, Toronto 1998, p. 141. The Arms Project and Physicians for Human Rights, Landmines: a deadly legacy, p. 27I. Report of the JCRCfor the Review Conference of the I980 UN Convention on Weapons, February 1994, p. r63.

Protocol II and the Conventional Weapons Convention

III

noted, however, that the military were only being asked to consider the question in international conflicts. This begs the question of what their view would have been in non-international conflicts, if the rules were to apply to both sides. During the drafting process ofthe Landmines Protocol there does not appear to have been in depth discussions either on the medical, social and economic effects of landmines or on the risk for civilians of the "delayed-action quality of landmines". 66 Furthermore, "the drafters of the Landmines Protocol ignored the fact that whereas landmines are concerned, it is essential to make an analytic distinction between indiscriminate use and indiscriminate effects". 67 In particular, article 3, which prohibits in all circumstances the direct use of mines against the civilian population as such and the indiscriminate use of such weapons, fails to address the threat posed by landmines, which outlive their military purpose. Even if, in fact, mines, during the military operations, could serve military purposes, when the military objective has been removed from the mined area, the anti-personnel mines, left behind, become automatically indiscriminate. 68 As regards the prohibition of the use of mines against the civilian population, it is even possible to infer more restrictions from article 51(4) of Protocol I Additional to the Geneva Conventions than from the Conventional Weapons Convention. 69 Furthermore, the lack of enforcement measures, which could have been expected as the Convention deals with international conflicts, makes the implementation of these provisions completely left to combatant parties. This outcome might be partially explained considering that "for the most part [the Conventional Weapons Convention] was negotiated by arms control and disarmament personnel who had little or nothing to do with the development of the Additional Protocols".7 0 Therefore, they might have in mind not the negotiation of a humanitarian law treaty, where there was the precedent of enforcement provisions of the Geneva Conventions of 1949 and Protocol I of 1977, but the negotiation of Hague law. Traditionally, those treaties did not provide for specific enforcement measures, beyond the general obligation of a party to give effect to the treaty. The provision of article 5/ which requires that "effective advance warning of any delivery or dropping of remotely delivered mines which may affect 1

66

The Arms Project and Physicians for Human Rights, Landmines: a deadly legacy, pp.

67 68

Ibid., p. 275. (Emphasis in the original). Report oj the IeRC for the review conference oj the I980 UN Convention on Weapons, February 1994, p. 165. On the issue see the discussion in Landmines, a deadly legacy, pp. 286 ff. Roach, A.]., "Certain Conventional Weapons Convention. Arms control or humanitarian law?", p. 14. Art. 5 provides restrictions on the use of remotely delivered mines. These devices, by being scattered from aircraft, rockets or artillery, could be laid indiscriminately, thus posing a serious threat to the civilian population. Given this situation, a few delega-

27 1- 2 72.

69

70

71

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the civilian population" be given, has also been strongly criticised. In particular, it has been suggested that the requirement of giving "effective advance warning", "would seem to be one which would be most often honored in the breach, both for technical reasons and because of the escape clause 'unless circumstances do not permit"'J2 Shortcomings are also evident in article 7 of Protocol II, as it makes the parties legally bound to record only the location of pre-planned minefields, whilst, for all other minefields, there is no such obligation. Furthermore, given that a pre-planned minefield "is, by its nature, one for which a detailed military plan exists considerably in advance of the proposed date of execution [... ] such a detailed military plan could not exist for the vast majority of minefields emplaced during wartime".73 Finally, Article 9 states that "after the cessation of active hostilities, the parties shall endeavour to reach agreement [...] to remove or otherwise render ineffective minefields [...]", but, given the lack of information which parties even have regarding the mines they have scattered, and the costs involved in clearing minefields, this provision is very difficult to implement. As it appears, even if the Landmines Protocol was designated to apply only to international armed conflicts, its provisions were very minimal. Although a few delegations held that it was necessary to prohibit the production, stockpiling and transfer of the conventional weapons - making, therefore, the prohibition of landmines applicable to internal armed conflicts as well - this proposal met strong objections. 'From a moral standpoint, [however], it is inconceivable that a government would consider using against its own population weapons it has agreed not to employ against an enemy State because of their cruel nature") 4 This contradiction seemed to appear in the Preamble of Protocol II where, in fact, it is stated that the "positive results achieved in this area may facilitate the main talks on disarmament75 with a view to putting an end the production, stockpiling and proliferation of such weapons".This was achieved almost two decades later. What contributed to such an achievement?

72 73

74

75

tions supported a complete ban of their use. Carnahan, B., "The law of land mine warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons", p. 80. Reported in Prokosch, E., The technology of killing: a military and political history of anti personnel weapons, p. 162. Carnahan, B., "The law of land mine warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons", p. 84. Sandoz, Y., "Turning principles into practice: the challenge for international conventions and institutions", in Maresca, L. and Maslen, S. (ed.), the banning of antipersonnellandmines: the legal contribution of the JCRC, Cambridge University Press, Cambridge 2000, p. III. The use of the word "disarmament" shows that there was even confusion with disarmament, which is negotiated in Geneva, under UN auspices. See also supra, text accompanying footnote 70.

Chapter V 198o-the Present: A Dramatic Increase in the Number of Treaty Law Rules Applicable in Non-International Armed Conflicts

In the last two decades of the twentieth century, the number of treaty rules specifically addressing non-international armed conflicts has enormously increased. Analysing the evolution of the international law of armed conflicts throughout the centuries it appears that the majority of norms currently regulating internal armed conflicts were produced from 1980 onwards. By analysing the formation of the relevant treaty law drafted in this period oftime, chapter V tries to understand the reasons behind the recent development of the treaty rules applicable to internal armed conflicts. In particular, chapter V deals with the treaty law-making process relating to the drafting of Amended Protocol II to the Conventional Weapons Convention, (1996), the Ottawa Convention,z (1997), the Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict,] (1999), the Optional Protocol to the Convention on the Rights of the Child, (ZOOO)4 and the Conventional Weapons ConventionS as amended by the Second Review Conference (zoor). As mentioned above, what is remarkable about the treaties examined in this chapter is that none of them attempts to supplement Protocol II Additional to the Geneva Conventions. Furthermore, none of them deals generally with regulation of internal armed conflicts. They either extend the application of treaties previously applicable only to international armed conflicts to internal armed conflicts, or they are applicable from their adoption to both kinds of conflicts. In particular, they all address specific problems which occurred both in international and non-international armed conflicts; their application to internal armed I

2

3 4

5

The formal title of the treaty is ''Amended Protocol lIon Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices". Hereinafter "Amended Protocol II". The formal tide of this Convention is "Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer ofAnti-Personnel Mines and on their Destruction". Hereinafter the "Ottawa Convention". Hereinafter the "Second Hague Protocol". Hereinafter the "Optional Protocol". The formal title of the Convention is "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". Hereinafter "Conventional Weapons Convention".

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conflicts is the result of the issues at stake and of the way those treaties were negotiated, and not the result of specific negotiations addressing internal armed conflicts per see This change seems to follow from a change in the formative factors of the treaties, which, having a situation on the ground focus, did not distinguish between international and internal armed conflicts. It follows that the next sections, whilst keeping the focus on the formation of treaty rules relating to non-international armed conflicts, also need to address the formation of the treaty law of armed conflict in general, as the former follows from the latter. The analysis of the treaty provisions is made so as to explore whether this change in the approach6 is contingent or an expression of an emerging tendency in drafting rules of humanitarian law. Furthermore, the next sections also try to explore whether a change in the sources of law also brought about a change in the content of treaty provisions. I.

1980-1996: The rise ofinternational concern toward a complete ban of landmines. Amended Protocol II

The need to extend Protocol II to 'the Conventional Weapons Convention to internal armed conflicts became apparent as in the second half of the twentieth century not only most conflicts have been internal? but also most of the injuries caused by landmines 8 occurred in such conflicts. Furthermore, during the 80S, the humanitarian and socio-economic costs of landmines also became evident. Figures showed that every year anti-personnel mines claim 26,000 casualties 9 and that most of these casualties were children, women and farmers. The resulting social and economic costs are enormous. In particular, the country affected by mines faces dramatic costs related to medical treatment and rehabilitation of those hit by such devices. Families are impoverished as productive members are rendered unable to work from the injuries caused by mine explosions. The economic disaster caused by this device is also apparent considering that mines render whole areas of land uninhabitable and inaccessible for cultivation and animal grazing. 10 Whole communities are not only forced to leave 6 7 8 9

10

It is referred to the drafting of rules of humanitarian law without distinguishing between international and internal armed conflicts. See supra, Chapter IV footnote 6 and text accompanying footnote 7. In the present chapter, any reference to "landmines" is to be read as "anti-personnel landmines", and it is not meant to include anti-vehicle landmines. Cameron, M.A., Lawson, R.l., Tomlin, B.W., "To walk without fear", in Maxwell, A.C., Lawson, R.]., and Tomlin, B.W. (ed.), To walk withoutfear: the global movement to ban landmines, Oxford University Press, Oxford 1998, p. 2. During the 1980s several reports on the issue were also published by NGOs, including the IeRC, and by specialised journals. See further below. For example in Angola, which has one-third of its territory covered by about 20 million mines, the Mavinga valley, a fertile area in South-East, is mostly inaccessible due

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their native places, but they are also prevented from returning back as mines are rarely removed in full after the end of military hostilities; this might create internal tensions and generate economic destabilisation in neighbouring countries. Rural populations, whose land is uninhabitable, tend, in fact, to cross the border in order to look for better conditions of life and this situation tends to crystallise as refugees are prevented from returning to their mined lands. Considering the widespread use of landmines, (it is calculated that eightyfive million of mines are scattered over sixty countries, II) and that mine clearance requires high costs and a long time,12 and that it is rendered extremely difficult by unmarked minefields,13 the magnitude of the problem appears dramatically evident. Alerted by these figures, a loose coalition of NGOs, in 1992, launched an international campaign to stop the use and transfer of mines completely.14 It should be recalled that when the use, production and transfer of a weapon is prohibited, any distinction between international and internal armed conflicts becomes pointless as the weapon in question is automatically prohibited in both conflicts. It is noteworthy that the six NGOs that started raising concern about the problems caused by landmines became independently convinced of the necessity to start a campaign from their own field experience. Some of them, such as Handicap International,15 which played an important role in lobbying the French government to call for a Review Conference to amend the Conventional Weapons Convention, were not even traditional campaigning NGOs. In a short time, over a thousand organizations in several countries joined the campaign, which is known as the "International Campaign to Ban Landmines" (ICBL). Although, the ICRC,I6 for reasons related to its mandate did not for-

II

12

13 14

15 16

to landmines. Prokosch, E., 1he technology of killing: a military and political history of antipersonnel weapons, Zed Books, London 1995, p. 18I. It has been calculated that, at the current rate of mine clearance achievable by over 25 United Nations teams working in Mghanistan, it would take 4,3°0 years to clear this country oflandmines. Report ofthe JGRGfor the Review Conference ofthe I980 UN Convention on Weapons, February 1994, p. 159. Furthermore, as pointed out by Michael Hoey (Ireland), for every mine cleared, 20 more are laid. (General Assembly Plenary - 5 - Press Release GA/9185 73rd Meeting (AM) 5 December 1996). As regards the specific costs, it has been calculated that removing a landmine costs the international community between $300 and $1000. On the contrary, a mine costs about $5. See supra, chapter IV.2. The first six NGOs which started campaigning on landmines issues were Handicap International (France), Human Rights Watch (USA), Medico International (Germany), The Mines Advisory Group (UK), Physicians for Human Rights (USA), and the Vietnam Veterans of America Foundation (USA). Handicap International is a French NGO fitting artificial limbs to mine victims. As regards the relationship between NGOs and the IeRC, although many NGOs are willing to co-operate with the IeRC, (see International humanitarian law and

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mally join the coalition, it worked actively to persuade states that the only effective means to end the suffering caused by mines was to ban them completely.I7 In particular, in order to study the current military utility and consequences of the use of landmines, the JCRC hosted several important Symposia on anti-personnel mines. I8 Furthermore, the UN General Assembly throughout the years 19931996 adopted several resolutions both to make states agree to a moratorium on the export of antipersonnellandmines and to adopt new prohibitions and restrictions on their use. Finally, the European Union, the Organization of American States and the Organization of African Unity also pushed for a ban on anti-personnellandmines. As a result of such efforts, in particular of the ability of the JCBL to galvanize public opinion, eighteen mine-producing countries, including the United States, enacted moratoria on the transfer and use oflandmines. I9 In the United States Senator Patrick Leahy, who introduced the Landmine Moratorium Act in the US Senate, even supported an international agreement banning landmines. 20

17

18

19 20

protection. Report of the workshop, I8-20 November I99 6, ICRC, Geneva 1997, p. 3r.), the special status of the ICRC on the international sphere makes the co-operation possible only rarely and only on general issues. Ibid., p. 68.The co-operation between the ICRC and NGOs, however, could prove very helpful as their tasks could be complementary. In particular, whilst the ICRC can talk during Diplomatic Conferences and it produces highly regarded reports, NGOs can gather and make public relevant information to be used during their campaigns. See also next footnote. The JCRC' s involvement in the campaign was very controversial within the movement. In particular, those who were sceptical about the Red Cross and Red Crescent Movement assuming a public advocacy role feared that I) traditional methods of campaigning could jeopardize the relationship between the ICRC and governments. Such a relationship is, in fact, strongly based on the rule of confidentiality observed by Red Cross workers. (See supra, chapter 11.3) 2) being involved in several campaigns and, at the same time, maintaining moral authority and influence could be difficult; 3) a public advocacy role could interfere with the ability of the JCRC to continue performing its traditional role as a neutral intermediary, and its functions under international humanitarian law. See Meyer, A.M., "Public advocacy - Why the Red Cross and the Red Crescent should look before it leaps", 315 IRRC 614-626 (1996) and Haug, H., "Neutrality as a Fundamental Principle of the Red Cross", 315 IRRC 627630 (1996). For example, as regards the involvement of the ICRC in the landmine campaign, it might be argued that "following the JCRC's public support for a total ban on anti-personnel mines, the report it later commissioned on the military utility of such weapons [see further below] was automatically viewed with initial scepticism in some quarters, regardless of its merit, since it confirmed the institution's pre-existing policy". Ibid. p. 618. On the ICRC's position with regard to landmines see "Review Conference of the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons", 307 IRRC 363 (I995), pp. 363-367. Parlow, A., "Toward a global ban on landmines", 307 IRRC 39 1 (I995), p. 400. The Arms Project and Physicians for Human Rights, Landmines: a deadly legacy, Human Rights Watch, New York 1993, p. 320.

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In order to show the interplay between public opinion and the changing attitude of states it is worth mentioning the case of Italy, which was one of the major producers of mines. In particular, by presenting the issue on popular television talk shows, the landmine movement managed to mobilize public support, which, eventually, put pressure upon the Italian government. It is noteworthy that government representatives, such as the Ministry ofDefence, started to publicly support the campaign to stop landmines. Another important achievement of the Italian campaign was to manage to gain the support ofthe town council of the city which hosted Valsella plant, of the trade unions, and even of some workers of the Valsella plant. In order to start the negotiation process, the ICBL activated the mechanism provided in article 8 of the Conventional Weapons Convention .11 The Review Conference represents, in fact, a critical opportunity to develop international law and to address the shortcomings of the existing instruments, especially as regards particularly sensitive issues on which governments are unlikely to reach an immediate consensus. The initiative to call for the Review Conference came from France. The French government was pushed to take this initiative by Handicap International, which had managed to obtain thousands of signatures in France in order to ban landmines. In particular, the French government "is viewed to have initiated the CCW review process in response to the demands of the NGOs and the French public and to 'get them offhis back'''.13 Despite the increase in humanitarian concerns, the military establishment continued to hold that "the harmful effects of landmine use could be sufficiently mitigated by regulations on deployment"1 4 and that, "for a nation to deny its military the use of a weapon [... ] there must be a compelling case that the weapon is not indispensable to legitimate military operations and that its utility is clearly outweighed by the resultant killing and wounding of innocent civilians".2 5 Considering, however, the evidence produced both by NGOs and military experts on the limited utility of landmines, those who were in favour of a ban started to be convinced that the reluctance of the military and governments to favour a complete ban had "more to do with the fear of setting a precedent regarding long-used conventional weapons than the actual need for landmines 21

24

In this country Valsella Meccanotecnica, one of the world's biggest private companies producing mines, was located. See further below. Article 8 was designated to convene subsequent conferences in order to amend the provisions of the Convention and of its Protocols. Williams, J. and Goose, S., "The international campaign to ban landmines", in Maxwell, A.C., Lawson, R.]., and Tomlin, B.W. (ed.), To walk withoutfear: the global movement to ban landmines, p. 28. The Arms Project and Physicians for Human Rights, Landmines: a deadly legacy, p.

25

Ibid., p. 13 6.

21

22

23

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themselves". 26 This view was confirmed by the opinion expressed by the US Army Chief of Staff, General Gordon Sullivan. In particular, by opposing the legislation on moratorium proposed by the United States, he said that "the precedent established - that of unilateral denial to US forces of a legitimate, essential weapon, based on potential post-conflict humanitarian concerns - threatens the use of a wide range of military weapons".2 7 Furthermore, British military strategists, who were in favour of a ban, suggested that "it might be custom, rather than military necessity, that undergirds arguments for continued use of antipersonnel landmines".28 Given this situation, it is not surprising that the negotiation process to amend Protocol II did not start under good auspices. During the preparatory meetings of a "Group of Governmental Experts", held in 1994 and 1995, it was, in fact, agreed that non-governmental organizations, apart from the ICRe, would not be admitted as observers. 29 Controversies in accepting an active role of N GOs during the Review Conference were also caused by the fact that those representing states at the preparatory committee (prepcom) tended to come from those who usually represented states in disarmament negotiations. The head of delegations at the prepcom were, in fact, often disarmament experts who were willing to follow the "conference on disarmament style" according to which secrecy and autonomy from public opinion are regarded as "essential for compromises to be reached between disparate positions". 3° Although NGOs were subsequently allowed to be present in plenary sessions of the Review Conference, during the preparatory meetings it was agreed to follow a "classic interstate negotiation process",3 I and to reach an agreement on the basis of consensus. This kind of decision-making puts a lot of emphasis upon state sovereignty in that each individual state party to the convention, having the power ofveto, can block any proposa1. 32 In particular, it was agreed that both the decisions regarding the organization of the conference and the decisions regarding the adoption of norms were to be taken by consensus. 26

Willimas,]., "Landmines and measures to eliminate them", 307 IRRC 375 (1995), p.

27

389. Ibid. It is to be noted that a complete ban of landmines was not considered by arms

28 29 30

31 32

producers a threat to their corporate profits. Reported in Parlow, A., "Toward a complete ban on landmines", p. 404. Prokosch, E., '!he technology ofkilling: a military andpolitical history of anti personnel weapons, p. I85. Dolan, M. and Hunt, C., "Negotiating in the Ottawa process: the new multilateralism", in Maxwell, A.C., Lawson, R.]., and Tomlin, B.W. (ed.), To walk withoutfear: the global movement to ban landmines, p. 398. See ibid., pp. 394-399 as regards the difference between "old" and "new" multilateralism. See also supra, ch. IV.2. Ibid, p. 398. See further below the different decision taken during the negotiation of the Ottawa Convention, which, in fact, is regarded as falling within the "new" diplomacy.

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The UN Secretary-General, however, considering the important role played by the ICRC, allowed the ICRC to speak, submit proposals and distribute documentation during the preparatory work by the Groups of Experts for the Review Conference. In addition, the ICRC was invited to present a specific working paper relating to the ways and means of amending Protocol II to the Conventional Weapons Convention. 33 Following this request, the ICRC published, between the second and third session of the conference itself, in March 1996, an important study in which it reported the conclusions of a group of military experts 34 that seemed to contradict the traditional military view on the issue. The study found not only that the establishment of extensive minefields is time-consuming, expensive and dangerous, but also that anti-personnel mines have a limited military utility compared to the disastrous consequences related to their use. The impact of the report, however, could have been more important if it had been published earlier during the negotiation process of Amended Protocol II. During the negotiation process of Protocol II the discussion focused in particular on military-technical aspects and on its scope of application. 35 There was, however, also mounting awareness that the scourge of landmines could be dealt with only through the negotiation of a complete ban. Another issue, which was extensively debated, related to the choice of"implementation procedures" or "verification mechanisms". It is noteworthy that, although at that time only 14 states were in favour of a total ban, during the Conference there was general agreement "that the aim of a strengthened land-mine Protocol should be the eventual adoption of a total ban on land-mines".J6 Despite this agreement, the first session, held from 25 September to 13 October 1995, closed without substantial results. 37 There was, however, a growing awareness that something had to be done. This awareness was mostly due to the work ofNGOs.1hroughout the meetings, NGOs had, in fact, continued to raise mine awareness by organizing several activities, including the submission of a two-metre pile of petitions to the Conference President

33

34 35 36 37

Willimas,]., "Landmines and measures to eliminate them", p. 365. It should be noted that inter-governmental organizations were also present, such as the UNHCR and the UNICEF. The group was convened by the ICRC in February 1996. Press Release DC 2535, Vienna 13 October 1995· Ibid. During the same session, however, a new Protocol to the Conventional Weapons Convention, (Protocol on Blinding Laser Weapons), was adopted. NGOs, (apart from the ICRe and the Arms Project, a Division of Human Rights Watch), did not take part in its drafting process. The adoption of this Protocol is particularly remarkable considering that most delegates supported the view that, even if the provisions of the Protocol did not specify it, they intended it to be also applied to internal armed conflicts. Several states even declared that they regarded the Protocol as applicable in "all circumstances".

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Mr. Molander. Extensive media coverage of the Conference also helped N GOs to put pressure upon governments. Finally, the fact that the President of the Conference belonged to a pro ban country (Sweden), played an important role in pressing delegations to reach an agreement by continuing to emphasize the suffering caused by landmines.3 8 Despite these continuous efforts, the resumed session of the Review Conference held at Geneva from 15 to 19 January 1996, similarly to the previous session, by focusing most on the military-technical aspects of the devices regulated by Protocol II, failed to reach an agreement. In particular, discussions concentrated on existing stocks, detectability, self-destruction capabilities and the length of any transition periods.3 9 During this session a step forward was represented by the increase in the number of countries which had already asked for a total ban. Now they were, in fact, 20. (In September 1995 they were 14). This increase reflected the mounting public concern with regard to landmines. As Joerg Wimmers, of the Mine Clearance and Policy Unit of the United Nations Department of Humanitarian Affairs (DHA) pointed out, "public opinion was increasingly expecting a solution from the international community". Considering the important role played by Canada later on, it is also significant that, in this session, the Canadian delegate announced that his Government had adopted a unilateral ban on the production, export and operational use of antipersonnellandmines. Finally, at the start of the last session held in Geneva from 22 April to 3 May 1996, the number of states calling for a complete ban had risen to 29 and continued to increase. By the end of the session it had reached 34. 40 During this session Amended Protocol II was finally adopted, but it fell short of introducing a complete ban of landmines. The most notable change introduced by Protocol II, as amended, was the provision, embodied in article I, which extends its field of application to cover non-international armed conflicts. The extension of the scope ofthe Landmines Protocol to non-international armed conflicts was a first response to the way in which the landmine campaign had been conducted. If, in fact, the leading argument was that the scourge oflandmines could be eliminated only through a complete ban, the extension of the Protocol to non-international armed conflicts followed from that reasoning. Having recognized that the suffering inflicted by landmines was independent ofthe nature ofthe conflict, it would have been contradictory not to extend the Protocol to internal conflicts. States, in fact, did not object in principle to such an extension.

38

39 40

For example, at the end ofthe first session the President of the Conference noted that during the three weeks of the Conference, 243 more people had been wounded and 36 killed by landmines in Cambodia alone. See Press Release DC 2541, Geneva, 19 January 199 6. Press Release DC 2556, Geneva 7 May 1996.

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Furthermore, and more importantly, as regards the regulation of weapons, issues of state sovereignty, although important, do not playa key role. The possible military advantage of the weapons is the real issue at stake. This also explains why the issues mostly debated during the negotiation process were technical ones, rather than the extension of the Protocol to non-international armed conflicts. The military did not object to extending the Protocol to non-international armed conflicts as once the military recognize that a weapon can be given up, what matters to them is having all sides bound by the same rules, that is having universal acceptance for those rules. It is significant that "military training generally makes no distinction between preparations to use weapons and means of warfare in international or internal conflicts". 4 1 The other provisions of Amended Protocol II are limited to put further restrictions on the use of mines compared to the ones envisaged by original Protocol II. In particular, Amended Protocol II deals with anti-personnel mines, booby-traps and other devices, but it does not update original Protocol II as regards anti-tank mines. According to article 3(3), it is prohibited, in all circumstances, to use any mine "which is designed or of a nature to cause superfluous injury or unnecessary suffering". Considering the injuries caused by mines, this provision could function as a 'general clause'to put further limitations on the use of such weapons. Article 3(10), amending a provision particularly criticised in the original Protocol II, specifies the circumstances to be taken into account in order to take all feasible precautions to protect civilians. Articles 3-71ay down detailed provisions to restrict the use of anti-personnel mines; article 8 prohibits or limits certain transfers of mines and article 14 requires state parties to take all appropriate steps to prevent and suppress violations of this ProtocoL This provision is very important as it envisages implementation mechanisms, the lack of which represented one of the most notable shortcomings of original Protocol II. Even if amended, Protocol II could not satisfy public pressure and those states that sought a complete ban of landmines. As stressed by the SecretaryGeneral of the United Nations, "the revised mines Protocol did not reflect the groundswell of international public opinion for banning land mines". 4 2 The same view was echoed by several states and non-governmental delegates. Suffice it to mention that "in a Final Declaration, the High Contracting Parties to the Review Conference [... ] solemnly declared their conviction that States should strive towards the goal of the eventual elimination of anti-personnel land-mines, [... ] as well as a complete ban on their transfer". 43 41

42 43

Sandoz, Y., "Turning principles into practice: the challenge for international conventions and institutions", in Maresca, L. and Maslen, S. (ed.) 1he banning of antipersonnellandmines: the legal contribution of the JGRG, Cambridge University Press, Cambridge 2000, p. III. Press Release DC 2556, Geneva 3 May 1996. Ibid.

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It might appear that one of the key factors, which prevented the reaching of a general agreement on a total ban on landmines, was the consensus rule. As will be shown further below, the change of this procedural rule, along with the commitment of"like-minded" states, strengthened by further studies on the non effectiveness of the use of anti-personnel mines, proved decisive for the success of the Ottawa process. In particular, the Canadian delegate,44 by stating, in the closing session of the Review Conference, that Canada would host a meeting in autumn for governments and non-governmental organizations, which supported a comprehensive ban on all land-mines, made it clear that the Review Conference was unfinished work. 2.

Military Weapons and the Formatiion ofHumanitarian Law: The Ottawa Process and the Second Review Conference ofthe Conventional Weapons Convention45

The call of the Canadian government was immediately supported by the ICBL, the IeRC, the UN Secretary-General and by states in favour of a ban. The dissatisfaction shown at the end of the Review Conference by several states, the UN Secretary-General, the ICRC and NGOs, made it apparent that Amended Protocol II was just a start, a sort of "stage" to achieve the appointed goal: a complete ban of anti-personnellandmines. Looking at the evolution of the concern of states regarding landmines and at the mounting pressure of public opinion, the Ottawa process seems to have started during the negotiation process of Amended Protocol II. As such, it might appear less extraordinary than prima facie would appear. Here the most important factors that have made the adoption ofthe Ottawa Convention possible are singled out. In particular, the following section focuses on the main differences between the decisions taken during the negotiation process of the Ottawa Convention and the decisions taken during the negotiation process that led to the adoption of Amended Protocol II.

44

45

It should be noted that during the Review Conference, (in particular shortly after Canada announced a moratorium on the use of landmines), the Canadian Minister of Foreign Affairs changed. In particular Lloyd Axworthy took the place of Andre Ouellet that resigned from politics. Considering that there was not a change in the Canadian government, (the Liberal government started to govern in 1993), and that Canada, at the beginning of the negotiation process, was reluctant to support a complete ban, this rises the issue of the importance of the role of individuals (in this case Lloyd Axworthy) in achieving appointed goals on the international sphere. The choice to discuss the Second Review Conference alongside with the Ottawa process represents an exception to the chronological approach of the study. This is done in this case because a thematic analysis of the issue of military weapons offers the possibility to better establish a possible pattern of evolution of the law of noninternational armed conflicts.

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First of all, a key issue was solved differently from the decisions taken during the negotiation process ofAmended Protocol II. States agreed, in fact, to reach an agreement on the treaty provisions without a consensus rule. This decision meant that a single state could no longer block the law-making process by opposing a specific proposal. States adopted a principle according to which they decided to negotiate the treaty only among the core of the states in favour of a complete ban, the so-called "like-minded" states. They did it as they were confident that the other states would later adhere to the treaty. 4 6 Unlike the decision taken during the preparatory meetings of the First Review Conference of the Conventional Weapons Convention, which did not allow NGOs to attend such meetings, it was agreed that NGOs were allowed to assist as observers at the Diplomatic Conferences preceding the adoption of the Ottawa Convention. During the Oslo drafting session, the ICBL was even granted official observer status and its capacity to make proposals was accepted into the process by the core ban states. 47 This meant that the ICBL had rights of intervention and to be heard, whilst traditionally, such rights were granted only to the ICRC.4 8 Furthermore, NGOs made their voice heard by producing a conference newsletter, the Ban Treaty News and an informative daily fact sheet. During the Ottawa process political considerations matched humanitarian concerns. Several medium-sized powers, such as Canada and Nordic countries, decided, in fact, for a strong alliance with NGOs in order to oppose the "political hegemony of the United States".49 These countries, led by Canada and by its Ministry of Foreign Affairs, Lloyd Axworthy, decided to put all possible efforts in the campaign. In particular, the landmine campaign was pushed forward by the decision of Canada to bring "some new or relatively ignored issues, such as landmines, to the top of the foreign policy agenda". 5° Many governments also started to be convinced that banning landmines was "cost and risk-free". Furthermore, new reports of experts showed that a ban of anti-personnel mines was "not only

46

47

48 49

See Anderson, K., "The Ottawa Convention banning landmines, the role of international non-governmental organizations and the idea of international civil society", in II E]IL 91 (2000), p. 107. Dolan, M. and Hunt, C., "Negotiating in the Ottawa process: the new multilateralism", in Maxwell, A.C., Lawson, R.J., and Tomlin, B.W. (ed.), To walk withoutfear: the global movement to ban landmines, pp. 399 and 410. See supra, chapter 11.3. Anderson, K., "The Ottawa Convention banning landmines, the role of international non-governmental organizations and the idea of international civil society", pp. 107108.

50

Axworthy, L., "Towards a new multilateralism", in Maxwell, A.C., Lawson, R.]., and Tomlin, B.W. (ed.), To walk without fear: the global movement to ban landmines, p. 453·

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humane but militarily responsible".5 Inter alia, a IeRC study of 26 conflicts during the years 1940-1995 showed that "[landmines have] little or no effect on the outcome of hostilities [... ] [T]he effects are very limited and may even be counterproductive".5 2 As General Gray noted: "We [American armed forces] kill more Americans with our own mines than we do anyone else". 53 1his statement was an indication that military opinion was divided and that, therefore, it was no longer the military versus the humanitarian concern. An important indication that the issue was on the international agenda, and that there was an increasing consensus among states, came also from the adoption, with a vote of 156-0, in December 1996, of a UN General Assembly resolution calling upon states to "pursue vigorously an effective, legally binding international agreement to ban the use, stockpiling, production and transfer of anti-personnellandmines with a view to completing the negotiation as soon as possible".54 The media coverage of the mine issue during the Diplomatic Conference was also extensive. Suffice it to say that out of 2.400 participants to the Ottawa Conference, 500 belonged to the international media. 55 The media attention during the drafting process also increased because of the death ofthe Princess of Wales, which occurred during the drafting session of the Diplomatic Conference held in Oslo in September 1997. The death of the Princess of Wales attracted media coverage on the mine issue as she was a supporter ofthe movement against landmines and had attracted a lot ofmedia coverage when she went to visit countries plagued by landmines. Finally, an additional factor that made the public and media pressure mount was the Nobel Prize awarded to the ICBL, together with its co-ordinator,]ody Williams. Although the Prize was awarded in October 1997, whilst the Ottawa Convention was adopted in September 1997, it was important in keeping attention focused on the issue and in making states sign and ratify the Convention prompdy. 1

51

52

53 54 55

Opinion expressed by General Schwartzkopf and other 14 senior US military officers in a "Letter to President Clinton" published on the New York Times, 3 April 1996, p. A6. International Committee of the Red Cross, Antipersonnellandmines:friend orfoe? A study of the military use and ejfectiveness ofantipersonnel mines, ICRC, Geneva March 1996; update 12 May 1997, pp. 37-38. The study was endorsed by 55 military officers from 19 countries. Qyoted in Human Rights Watch, In its own words: the US army and antipersonnel mines in the Korean and Vietnam wars,]uly 1997, p. 13. UN Res 51/458, 10 December 1996. The resolution was adopted with 10 abstentions. Lawson, RJ., Gwozdecky, M., Sinclair,]., and Lysyshyn, R., "The Ottawa process and the international movement to ban anti-personnel mines", in Maxwell, A.C., Lawson, R.J., and Tomlin, B.W., To walk without fear: the global movement to ban landmines, p. 161.

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As appears, a unique combination ofevents led to the adoption, in September 1997,5 6 of the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer ofAntipersonnel Mines and on their Destruction. 57 Key factors were the adoption of the treaty without a consensus rule, a very good understanding between NGOs and 'like-minded' governments as political considerations met humanitarian concerns, the publication of high level reports, and a goal easily understood and shared by world public opinion. "There is little doubt that much of the success of the Ottawa Process can be traced to the uniqueness of the issue itself".s8 Despite the global movement,59 major powers, such as the USA, Russia and China have, however, not signed the Convention. The fact that important mine producers have not agreed on the complete ban of anti-personnel mines undermines the importance of the Ottawa Convention itsel£ "Non Ottawa states" could, in fact, transfer mines to non-state actors and to states which have not ratified the Ottawa Convention. This could undermine the importance of this step forward in the development of international law. By contrast, it should be noted that the negotiation process of Amended Protocol II did manage to keep states, such as India, on board. 60 Predictably, India was not part of the Ottawa process. Furthermore, several important producers of mines, such as China, the US and Israel have ratified Amended Protocol II, but not the Ottawa Convention. This begs the question of whether the formation of treaty norms from "bottom-up" and without a consensus rule, instead of from "top-down", is also a long-term winning strategy. On this issue the Second Review Conference of the Conventional Weapons Convention, held at Geneva from II to 21 December 2001, offers some points of attention. States Parties, in fact, agreed to extend the application ofthe Convention to internal armed conflicts 6I even if the involvement of NGOs, apart from the ICRC, was minimal. In particular, differently from the Ottawa treaty, the input 56 57

58 59 60

61

The Ottawa Convention was adopted on IS September and opened for signature on 3 December 1997· Anti-personnel mines, as covered by the Ottawa Convention, include anti-tank mines designed to detonate in the same way as anti-personnel mines, whilst antitank mines as such are not covered by the treaty. It should be noted that the latter ones were covered by original Protocol II. Lawson, R.]., Gwozdecky, M., Sinclair, ]., and Lysyshyn, R., "The Ottawa process and the international movement to ban anti-personnel mines", p. 182. The role of "public conscience in furthering the principles of humanity" is expressly recognized in the Preamble of the Ottawa Convention. The adhesion of India was particularly important because of the conflict in Kashmir. Moreover, it is noteworthy that several states, such as Bangladesh, Cambodia, Colombia, El Salvador, Portugal adhered to the Conventional Weapons Convention only after the adoption of Amended Protocol II. This was done by amending article I of the Conventional Weapons Convention.

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to the Conference did not come from NGOs, but from States Parties. During the First Review Conference States Parties had, in fact, already agreed "consistent with Article 8.3 (c) to convene a further conference five years following the entry into force ofthe amendments adopted at the First Review Conference, but, in any case not later than 2001".62 NGOs, apart from the ICRC, did not playa significant role even later on, during the Preparatory Meetings to the Conference and the work of the Second Review Conference itself Whilst certain NGOs, notably Human Rights Watch, engaged in forms of lobbying, there was, in fact, nothing like the campaign that was created around the issue of landmines. The ICBL itself played "only a limited part [... ] because it would continue to remain focused on anti-personnellandmines".6 3 Rather certain NGOs deliberately did not take part into the process as they "feel antagonism towards the CCW and [...Jregard it as ineffective and not worth supporting".64 The decision of States Parties, during the Preparatory Meetings, of allowing NGOs to participate only in public plenary sessions and upon invitation, contributed to maintain the negotiation process in the hands of those who take a political authority focus, namely states. However, in contrast with the First Review Conference, during the preparatory work to the Second Review Conference, there were several informal consultations where NGOs managed to bring their expertise and practical experience. 6s Prior to the Conference, several specialist NGOs, including the ICRC,66 also published research studies on the issues debated during the Second Review Conference. Such studies focused, in particular, on the threat posed by unexploded sub-munitions after they no longer serve a military purpose. The role played by the ICRC was of particular importance. The ICRC, in fact, submitted proposals and reports both during the Preparatory Meetings and during the work of the Conference. This would confirm the unique role played by the ICRe in the formation of the law of armed conflicts. NGOs themselves, when the wC?rk of the IeRC with regard to issues of humanitarian law is in line 62

63 64

Report of the Second Review Conference of the States Parties 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. Paragraphs 1-2.

Hereinafter "Report of the Second Review Conference". Statement of Ms Walker at the Plenary Meetings of the Conference. Report of the Second Review Conference, para. 5I. Mathews, R. ]., "The 1980 Convention on Certain Conventional Weapons Conventions: a useful framework despite earlier disappointments", 844 IRRC 991 (2001),

65

66

p. 1005.

On the issue see Lloyd, R., "Strengthening the Inhumane Weapons Convention: Second Review Conference of Certain Conventional Weapons Convention", 2 ISIS Policy Paper on Qualitative Arms Control, 2001. See, for example, JCRC, Explosive remnants of war: the impact landmines in Kosovo, Geneva 2000.

of cluster bombs and

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with their own goals and they are unable to undertake a campaign,6 7 may be tempted to leave the issues in the hands of the ICRC. As appears, although the Conference was dominated by bodies that take a political authority focus, the situation on the ground focus was also represented, notably by the ICRC and several specialist NGOS.68 This, however, seems not to have played a significant role with regard to the decision of extending the scope of the Conventional Weapons Convention to apply to all armed conflicts, including, therefore, non-international armed conflicts. As the delegation of the USA noted, "[t]he preparatory process for the Conference had revealed nearly universal support for the proposition that the Convention and its Protocols should apply in non-international armed conflicts".69 Interestingly, the delegation of India, who was not part to the Ottawa process, also encouraged the extension of the scope of the Convention as "[f]rom a humanitarian perspective, prohibitions or restrictions that were applicable to weapons in international conflicts should also be applicable in internal conflicts".7° Thus, in contrast to the First Review Conference, there was broadly agreement to the extension of the scope of the Convention. Considering that the decisions taken at the Second Review Conference followed the model of the First Review Conference, namely consensus,?1 the change was more due to a change in the attitude of States Parties than to procedural rules or to NGOs lobbying. Predictably the issue mostly debated at the Conference regarded the regulation of "explosive remnants of war", that is explosive munitions, which, dropped from the air or delivered by land-based remain, "in an armed yet unexploded state"7 2 after the closing of the military operations. However, similarly to the issue posed by landmine, the issue at stake here is not distinguishing between international and internal armed conflicts, but the possible military advantage. The military, in fact, tend to keep the weapons, whatever their effects, if they think that they are military useful, whereas NGOs and the JCRC focus on effects. 67 68 69

70 71

72

Mostly because of financial constraints. Inter alia, the Geneva International Center for Demining, the ICBL, Human Rights Watch, Landmine Action, and Mennonite Central Committee were present. Official Records of Plenary Meetings of the Conference. Report ofthe Second Review Conference, para. 57. Ibid, para. 61. See also, inter alia, the statements of the delegations of Russia, Mexico, Australia, China, Canada, and Belgium (on behalf of the European Union). At its Meeting on 14 December 2000, the Preparatory Committee had, in fact, agreed to apply the same Rules of Procedure as adopted by the First Review Conference. Maresca, L., "Second Review Conference ofthe Convention on Certain Conventional Weapons", 845 IRRC 255 (2002), p. 256. The Second Review Conference, inter alia, also set up a Group of Governments Experts to address the issue. A detailed account of the outcome of the Conference is beyond the scope of the study. As regards the purpose ofthe study, the work of the Conference is, in fact, relevant only in providing indications on the formation of the law of internal armed conflicts.

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Chapter V

Thus, it would appear that, at least as regards certain issues relating to the use of particular weapons, the law of armed conflicts is moving toward a uniform regulation, namely similar in both internal and international armed conflicts. This seems to be independent of the formative factors of the treaty. In order to understand whether this is a general tendency or it is limited to certain issues, it is necessary to analyse what happened, on the international scene, after the Ottawa Convention with regard to the formation of treaty norms relating to internal armed conflicts. 3.

The protection of cultural property: The Second Hague Protocol

The application of the Second Hague Protocol to non-international armed conflicts, in 1999, was not controversial as Protocol II Additional to the Geneva Conventions had already a provision on cultural property. Furthermore, the provisions of the I954 Hague Convention for the Protection of Cu~tural Property in the Event ofArmed Conflict,73 which relate to respect for cultural property, were already applicable to non-international armed conflicts. The only issue, which might have raised objections to its extension to noninternational armed conflicts, was the repression system. The repression system, as embodied in the Second Hague Protocol, defines the acts which constitute serious violations of the Protocol; in order to provide for effective enforcement, it requires States Parties to adopt national legislation criminalizing such violations, and establishing jurisdiction to try or extradite. A criminal repression system, in the context of internal armed conflicts had, however, already been debated and, eventually, accepted during the negotiation process of the statute of the International Criminal Court.7 4 Whilst this contributed to make the extension to non-international armed conflicts uncontroversial, it also shows the impact of existing treaty law, (in this case of the statute of the International Criminal Court), on the formation of rules of law. The only other issue, that of military necessity, which could have been controversial in internal armed conflict, was mostly debated by military experts, who do not oppose in principle to the distinction betvveen international and internal armed conflicts/ 5 The adoption of the Second Hague Protocol, therefore, did not represent a real innovation in the field of the law of internal armed conflicts. For this reason the analysis of the process which led to its adoption is not deal with in detail. It is interesting to note, however, that the formation of the treaty provisions of the Second Hague Protocol follows a pattern similar to that of the treaties above analyzed. Similarly to the problem posed by landmines, the effectiveness of the 1954 Convention came, in fact, into question following the analysis of the situa73

74 75

Hereinafter "the 1954 Convention". See further below, chapter VI. See supra, chapters 1.6, 11.8, IV.2 and further below.

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tion on the ground and, in particular, in this case, of the continuous episodes of destruction of cultural property in armed conflicts.76 In particular, the need to review the 1954 Convention became of international concern during the Second Gulf War and the war in the former Yugoslavia,n where the destruction of the "Stari Most",78 a symbol of Mostar, in November 1993, shocked the world community.The bridge, worked out of huge stone blocks, was an element of regional identity. Built in 1566 under the Ottoman, the bridge had, therefore, resisted 427 years of wars and natural disasters, before being destroyed in 1993. The initiative to call for a Review Conference came from the government of the Netherlands who, together with the UNESCO, commissioned and funded "a review of the objectives and operation of the Convention and Protocol with a view to identifying measures for improving its application and effectiveness and to see whether some revision of the Convention itself might be needed, perhaps by means of an Additional Protocol".79 Following the findings of the review, three meetings of experts were subsequently organized by the Netherlands. The result of the meetings was the drafting of a document, the "Lauswolt document", which was finally revised by the UNESCO Secretariat and submitted to the State Parties of the 1954 Convention at a meeting in November 1997. At this meeting the Netherlands also proposed to convene a Diplomatic Conference, which took place in The Hague in March 1999. It should be remembered that, as The Hague was going to be one of the venues of the marking of the loath anniversary of the 1899 Hague Conventions, the Dutch government was particularly committed to press for the adoption of a 1999 Hague Convention. This might also explain its leading role during the negotiation process. At the Diplomatic Conference convened jointly by the Netherlands and the United Nations Educational, Scientific and Cultural Organization (UNESCO), in addition to the IeRC and to the International Committee of the Blue Shield (ICBS), only four international non-governmental organisations, (which were not traditional campaigning NGOs), were represented. so It should be noted, however, that, although only a few NGOs were present, they were all specialist NGOs. Furthermore, it is also noteworthy that, following the drawing up 76 77

78 79 80

Often the destruction of culturally significant sites was even made for the only purpose of destroying the identity and moral of the enemy. See Henckaerts,]., "New rules for the protection of cultural property in armed conflict", 835 IRRC 593 (1999), p. 593· The "Old Bridge". Henckaerts,]., "New rules for the protection of cultural property in armed conflict", P·593· They were the following: International Council on Archives (ICA), International Council of Museums (ICOM), International Council on Monuments and Sites (ICOMOS) and International Federation of Library Associations and Institutions (IFLA).

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of a Preliminary Draft Second Protocol, "relevant organizations were invited to submit comments on the draft". 8I This is a confirmation that international organizations, including inter-governmental organizations, are considered a source of expertise during the formation of treaty law. 82 In other words, even if states took the initiative in addressing the issues and they led the negotiation process without the kind of external pressure which characterized the Ottawa process, they felt the need of asking international organizations for comments. The Second Hague Protocol was eventually adopted in March 1999, without a vote. This Protocol supplements the 1954 Convention and only applies to states which ratified the Convention. The issue, which was mostly debated during the negotiation process, was that of military necessity. There was, in fact, a tension between the military, who wanted to broaden the scope of the definition, and cultural property protection experts, who wanted to narrow it. 83 Eventually, the concept of military necessity was specified taking into account the provisions embodied in Protocol I Additional to the Geneva Conventions. 84 It is significant that the issue relating to the definition of military necessity was controversial per se and not for its application to non-international armed conflicts. As mentioned above, the military are, in fact, more interested in having all sides bound by the same rules (once they agree on those rules) than distinguishing between international and internal armed conflicts. In addition to the concept of military necessity, the Second Hague Protocol also supplements the 1954 Convention as regards the substitution of the system of"special protection" with that of"enhanced protection"; and the specification of the obligations to take precautionary measures. With regard to the treaty law-making process, the role of "like-minded" states in taking the initiative in drafting new treaty law has also on this occasion proved to be of considerable importance. However, it should be remembered that the analysis conducted so far shows that "like-minded" states are likely to take the initiative only when national political interests match humanitarian considerations. :Finally, whilst the role of the ICRC, along with that of UNESCO, in submitting proposals and comments was valuable, the presence of only very few NGOs might be a confirmation that, when the issues are uncontroversial or, even 81

82 83

84

Henckaerts,]., "New rules for the protection of cultural property in armed conflict", P·594· See supra, chapter 111.4. On the issue see generally, Hladik,]., "The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the notion of military necessity", 835 IRRC 621 (1999), p. 624. Unlike the 1954 Convention, Protocol I of 1977 provides that only military objectives can be made the object of attack. As a result, cultural property, being civilian property, should not be attacked unless when it becomes a military objective and there is no other feasible alternative. (Art. 6 of the Second Hague Protocol).

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if controversial, they are already properly addressed by the negotiating actors, NGOs, having limited resources, prefer to devote their time and energy to issues where their participation might make a difference. 85 This was, for example, the case regarding the involvement of children in armed conflict. 4.

Children and armed conflicts: The Optional Protocol to the Convention on the Rights ofthe Child (CRC) on the involvement of children in armed conflict

The issue raised by the use ofchildren during the conduct ofhostilities was already a matter of international concern during the drafting of Protocol II Additional to the Geneva Conventions. During the drafting process of the provision of Protocol II that sets the minimum age to take part in the hostilities at fifteen, several delegations already considered, in fact, this age too low. Although the protection of the eRC applies to any person below the age of eighteen, according to article 38 of the CRC it is not unlawful for persons aged between fifteen and eighteen to be recruited and to take part in hostilities. Several States Parties, however, made declarations expressing their disappointment about article 38 and considered this provision incompatible with the child's best interest, as provided in article 3 (I) of the Convention.86 In the last decades the use of children under 18 years of age as soldiers in armed conflicts has become one of the most problematic aspects of today's confl.icts. It is estimated that more than 300,000 children under the age of 18 are currently being used in armed conflicts in more than thirty countries around the world by government armed forces and armed opposition groups.8 7 Some of 85 86

87

See also supra, section 2, text accompanying footnote 67. For example Argentina stated that "concerning article 38 of the Convention, the Argentine Republic declares that it would have liked the Convention categorically to prohibit the use of children in armed conflicts. " Austria declared that it "will not make any use of the possibility provided for in article 38, paragraph 2, to determine an age limit of 15 years for taking part in hostilities as this rule is incompatible with article 3, paragraph I, which determines that the best interests of the child shall be a primary consideration". The Colombian government observed that "while the minimum age of IS years for taking part in armed conflicts, set forth in article 38 of the Convention, is the outcome of serious negotiations which reflect various legal, political and cultural systems in the world, it would have been preferable to fix that age at 18 years in accordance with the principles and norms prevailing in various regions and countries, Colombia among them, for which reason the Colombian Government, for the purpose of article 38 of the Convention, shall construe the age in question to be 18 years". The Government of the Federal Republic of Germany regretted "the fact that under article 38 (2) of the Convention even fifteen-year-olds may take a part in hostilities as soldiers, because this age limit is incompatible with the consideration of a child's best interest {article 3 (I) of the Convention)". Source: Web site of the Coalition to stop the use of child soldiers. (Visited: February 2000).

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them are as young as seven or eight. They are often forced to become instruments of war by conscription, coercion or by abduction. Even when they volunteer, it may be owing to the lack of any meaningful choice. Many of them are subjected to violence and forced to commit atrocities. Child soldiers, being so young, are easily manipulated and indoctrinated to commit extreme forms of atrocities. SS The recruitment of child soldiers also has a tremendous impact on the postconflict country situation. The rehabilitation and reintegration of child soldiers poses, in fact, many problems to the development of the countries affected by this problem. In order to address the issue Gras:a Machel was asked to prepare a report, in 1996, on The Impact ofArmed Conflict on Children. The report was undertaken with the support of several UN bodies, such as the then United Nations Centre for Human Rights, the United Nations Children's Fund, and the United Nations High Commissioner for Refugees and was prepared with the contribution, among others, of a team of independent experts and of civil society organizations. In particular, it analysed the physical and psychosocial consequences of the involvement of children in military operations and the actions needed to improve the existing international standards. The report also called for an international campaign against the use of child soldiers and for the age for recruitment and participation in the armed forces to be raised to 18 years through the adoption of an Optional Protocol to the CRC applicable to both international and internal armed conflicts. From this time on, the steps taken to introduce international legislation relating to children in armed conflicts resemble the history ofthe Ottawa Convention. Here, however, the outcome was slightly different. In 1998 leading non-governmental organizations formed a Coalition in order to promote the adoption of national, regional and international standards prohibiting the use of child soldiers under 18 years of age. They worked closely with prominent international organizations such as the JCRC, the Committee on the Rights of the Child, the Office of the High Commissioner for Human Rights, the Special Representative of the Secretary-General for Children and Armed Conflict,8 9 the UNHCR and UNICEF. As the ICBL had a very straightforward and clear message - ban the use of landmine - so the Coalition to stop the use of child soldiers supported the adoption of a very simple and clear principle: to stop the use and recruitment, both voluntary and compulsory, of any person under the age of 18. 90 Similar to 88 89 90

The use of child soldiers also makes problematic for the party that uses them the respect of the law of armed conflicts, as child soldiers find it difficult to respect it. The Special Representative was appointed in September 1997 in order to monitor the developments following the report of Ms Machel. It should be noted, however, that it also campaigned to ensure the rehabilitation and reintegration into society of child soldiers.

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the strategy used by the ICBL, the Coalition to stop the use of child soldiers established partnerships and national coalitions in several countries all over the world, organized conferences to make the public aware of the problem, published research reports on the issue and attracted media attention. Significant support for the Campaign came, in May 1998, from Canada and Norway, who signed the Lys0en Declaration for human security, making a commitment to children's protection in armed conflict. It is noteworthy that Canada and the Nordic countries, which led the negotiation process of the Ottawa Convention, were also the most important states in promoting the adoption of new international law provisions relating to children and armed conflicts. In particular, as regards Canada, the same political actor, Lloyd Axworthy, supported both campaigns. Several international governmental bodies also started to address the issue. In particular, in August 1999, the UN Security Council, in Resolution 1261, called on the international community to give urgent attention to the problem. Moreover, the UN changed its policy on the minimum age for UN peacekeepers and set a minimum age requirement for UN peacekeepers, preferably at 21 years of age but no less than 18. The ILO also established, in its Convention 182, that child soldiering is one of the worst forms of child labour and set 18 as the minimum age for forced or compulsory recruitment. Furthermore, in November 1999 the first regional treaty, (the Mrican Charter on the Rights and Welfare of the Child), which established 18 as a minimum age for all recruitment and participation in hostilities, entered into force. Against this background, on 25 May 2000, the UN General Assembly adopted an Optional Protocol to the CRC addressing the issue. Unlike the Ottawa Convention, the agreement was reached by consensus. In particular, the Optional Protocol, which applies both to international and internal armed conflicts, establishes that States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities (art.I) and that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces (art.2). Article 4(1) states that armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years and, under article 4(2), that States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 91 Although the treaty represents a step forward in protecting children from armed conflicts, it raises a few considerations on the law-making process, as it did 91

The statute of the ICC considers war crimes both in international and internal armed conflicts the "conscription or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities". Respectively art.8.2(b) (xxvi) and (c) (vii).

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not repeat the achievements reached by the ICBL, even if the conditions were similar. In particular, it falls short of the "straight 18" standard supported by the international coalition ofNGOs.The comparison between the drafting history of the Ottawa Convention and of the Optional Protocol seems to show that, even if the role of "international civil society" is extremely important in getting an issue put on the international agenda, the definitive success of a campaign resides in the political will and determination of "like-minded" states to pursue the goals identified by NGOs. It is illustrative that, although several Latin America states had already declared, when they adopted the CRC, that they opposed article 38(2) and (3), the input to the drafting of the Optional Protocol came only later on from Canada and Nordic countries. In addition, despite the hopes that, following the adoption of the Ottawa Convention, states would continue to adopt treaties relating to armed conflicts without a consensus rule, the Optional Protocol was adopted by consensus. In particular, it might appear that whilst reaching an agreement without a consensus rule could playa role in embodying in treaty rules the concerns of those who take a situation on the ground focus, namely NGOs,9 it is not a determinant factor in adopting the treaty. In other words, a consensus rule seems to affect the content of the rules and not the adoption of a treaty. Finally, as regards the attitude of the military in this area, what seems to make most difference is the national culture with regard to the use of child soldiers. The US and the UK, for example, were not willing to change their own practices. This meant that the states which were opposed to change included some who recruit at 16/17 - but where the more common problems of child soldiers are not an issue - and countries, such as Iran, who allow the use of child soldiers at a very much earlier age. In common with the Second Hague Protocol, this Optional Protocol calls upon states to introduce national legislation to criminalise recruitment by state and non-state forces. It looks as though there is an emerging pattern, which used only to exist in relation to international conflicts: the criminalisation of activities in non-international conflicts. That is best exemplified by the statute of the ICC. 2

92

See supra, section 2.

Chapter VI Reaching an Agreement on Criminalizing the Violations of the Rules of Law Applicable in Non-International Armed Conflicts: The Statute of the International Criminal Court (ICC)

This chapter deals with the evolution of the enforcement system provided to address the violations of the treaty norms analysed in chapters I and with its impact on the formation of the treaty norms of the statute of the ICC relating to non-international armed conflicts. Therefore, although it covers the same period of time covered by chapters I-V, it focuses on the different issues related to the evolution of the principle of individual criminal responsibility for violations of the law of internal armed conflicts. The background to the rules of the statute of the ICC addressing non-international armed conflicts is analysed dividing the chapter into three periods of time. The first deals with the period of time prior to the drafting of common article 3 to the Geneva Conventions. The two other periods analyse the years 19491980 and 1980-the present, respectively. A great deal of attention is devoted to the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) as it has played a key role in the development of the law of non-international armed conflicts.

-v

I.

Punishing the law-breaker prior to the drafting of Common Article 3 to the Geneva Conventions

One ofthe first examples relating to the punishment ofwar criminals goes back to 405 BC and refers to the trial conducted by the Ancient Greeks against Philocles and his fellow Athenians. Whilst this judicial process "apparently happened on an ad hoc basis",2 a set of rules, the violation of which could entail individual responsibility, was embodied two hundred years later, in the Code of Manu. 3 I

2

3

See McCormack, T.L.H., "From Sun Tzu to the Sixth Committee: the evolution of an international criminal law regime", in McCormack, T.L.H. and Simpson, G.]. (ed.), ]he law of war crimes: national and international approaches, Kluwer Law International, The Hague 1997, pp. 33-35. Although Sun Tzu, in his ]he art ofwar, first addressed, in ancient times, the importance of conducting a limited fight, he did so in order to suggest the best strategy to win the conflict and not to lay down a set of rules either morally or legally binding, the violation of which could entail individual responsibility. See supra, chapter 11.2. Ibid., p. 35. See supra, chapter 1., text accompanying footnote 93.

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Under the Western Roman Empire, several violations of the military rules and their respective sanctions were identified and compiled. 4 Enforcement measures were also envisaged by Islamic law for the violations of its rules in war. 5 It is the Breisach Trial of 1474, however, that it is considered to be the "forerunner of contemporary international war crimes trials."6 The trial refers to the judicial proceedings against Peter von Hagenbach, the Governor of Breisach, who, in this capacity, committed several atrocities. Finally, defeated by a revolt, he was put on trial by neighbouring countries that had allied against him. He was tried and condemned to death in an ad hoc tribunal composed of twenty-eight judges from the allied powers. 7 1he trial is important in the context of the study as, at that time, not only was the distinction between international and internal conflicts not clear yet, 8 but also the tribunal held that certain acts are "contrary to the law of God".9 As such, they would be punishable in all circumstances. Later on, with the development of the concept of state sovereigntyIO and the distinction between international and internal armed conflicts, much emphasis was put on the punishment of rebels; but there do not appear to be indications that both fighting parties could be charged with the violations ofrules of (natural) law applicable to non-international armed conflicts. Considering that natural law was to be respected by allparties and in all circumstances, it might be argued that its violations should have been sanctioned. In early writings of international law, however, when the word "punishment" is used, it is done only in order to address the punishment of rebels; there is no reference to the punishment of excesses on the side of the established authority. Only Vattel seems to address II

the issue when he affirms that "certain forms of punishment, however just in

themselves, become cruelty when extended to too great a number of persons."IZ Although he does not go so far as to say that, similar to the behaviour of rebels,

4

5 6

7 8

9

10 II

12

See Strategica compiled by the Roman Emperor Maurice and the Ex Rujfo Leges Militares. McCormack, T.L.H., "From Sun Tzu to the Sixth Committee: the evolution of an international criminal law regime", p. 36. See also supra, chapter 111.2. Schwarzenberger, G., International law as applied by international courts and tribunals, Vo1.II, the law ofarmed conflict, Stevens and Sons Limited, London 1968, p. 462. Ibid., pp. 464-465. See supra, chapter I. Peter von Hagenbach tried to defend himself by saying that he acted so as he had to obey superior orders. The tribunal, however, rejected his defence claiming that, to accept it, "would be contrary to the law of God". Furthermore, it is significant that, before being executed, he was deprived ofhis knighthood as a knight should not have committed those crimes. See supra, chapter 1.6. See supra, Chapter 1.4. See supra, Chapter I sections 2,3 and 5. See supra, Chapter I, text accompanying footnote 82.

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the "cruelty" shown by the established authority should also be punished, at least he implies that both parties could be liable for misbehaviour. At the beginning of the twentieth century, the recognition of the principle that the breach of treaty obligations involves the responsibility of the party that violates them was already recognized. 13 In order to address the failure in observing international law obligations, victorious states generally imposed a compensation system upon the defeated state. 14 Compensation could be based on violations of the rules or simply on the fact that the victors have suffered harm. In the latter case, the victors might have suffered harm without the cause of the harm being a violation of the rules applicable. It follows that penalising for harm, whether or not it was caused by the violation of the rules, equates to penalising them for losing. These developments, however, concerned the law ofinternational armed conflicts.The enforcement of the ius in bello intern 0 continued to be left to national courts. In particular, the punishment of the military offences committed by military officers was left to Courts-Martial, specifically designated to meet "the exigencies of military service."15 As regards the principle of universal jurisdiction, it first developed, "at least as early as the seventeenth century", 16 with regard to piracy. Later on it developed so as to cover the crime of slave trading, war crimes and crimes against humanity.I7 Following the events ofWorld War I, the Allied Powers established a commission of fifteen members to address the issue of war crimes and, in particular, the individual criminal responsibility of members of enemy forces for violations of the laws and customs ofwar. The Commission expressly held that "all persons belonging to enemy countries [...] who have been guilty of offences against the

13

14

IS

16

17

According to a dictum ofthe Permanent International Court ofJustice, "the breach of an engagement involves an obligation to make reparation in adequate form". P.C.I.]., Series A NO.9 (1927), p. 21. Article 3 of the 1907 Hague Convention IV Respecting the Laws and Customs ofWar on Land expressly provides that ''A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming parts of its armed forces". See generally Kalshoven, F., "State responsibility for warlike acts of the armed forces", 40 ICLQ 827- 858 (1991). Encompassed in any legal system, it includes compensation both for lucrum cessans and damnum emergens. Rowe, P., Defence, the legal implication, Brassey's Defence Publishers, London 1987, p. 15· Randall, K.C., "Universal jurisdiction under international law", in 66 Texas L Rev. 785 (1988) p. 791. "Universal jurisdiction allows any nation to prosecute offenders for certain crimes even when the prosecuting nation lacks a traditional nexus with either the crime, the alleged offender, or the victim". Ibid., p. 785. Ibid., p. 800.

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laws and customs of war or the laws of humanity are liable to criminal prosecution". IS In the London agreement,1 9 it was expressly stated that "there shall be established [...] an International Military Tribunal for the trial ofwar criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities". Although such crimes could also be committed against fellow-citizens and, thus, in a context that could be regarded as an internal conflict, these developments concerned mostly crimes committed in the context of an international war. They did not address, specifically, the issues relating to the principle ofindividual responsibility for violations of the law committed in internal armed conflicts. By contrast, in the same period of time, the Genocide Convention, drafted in response to the crimes of genocide committed in the first half of the century,20 addressed both international and internal armed conflicts.

I. I.

1he Convention on the Prevention and Punishment ofthe Crime of Genocide (I948)

The Convention on the Prevention and Punishment ofthe Crime of Genocide is of importance as it provides that genocide, whether committed in time of peace or in time ofwar, is a crime under international law which the Contracting Parties undertake to prevent and to punish. (Article I). According to this Convention, those responsible for the crime of genocide "shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." (Article 4). As the crime of genocide can be committed both during international and non-international armed conflicts, it appears evident that, at least for certain offences, the principle ofindividual criminal responsibility was held applicable to criminal offences occurring in non-international armed conflicts. Considering, however, that another half-century was needed to reach a general agreement on the principle of individual criminal responsibility for the violation of the law of war in internal armed conflicts, it could be suspected that the drafters of the Genocide Convention did not anticipate the possible effects of this Convention on the development of the law. Rather, as the International Court ofJustice has recently felt the need to reaffirm that the crime of genocide

18 19

20

QlIoted in Sunga, L.S., Individual responsibility in international lawfor serious human rights violations, M. Nijhoff Publishers, Dordrecht 1992, p. 22. The London agreement was concluded by the USA, the United Kingdom, the USSR and France on 8 August 1945. It contained provisions for the prosecution and punishment of the major war criminals of the European Axis. In particular, against the Armenians by the Turkish and against the Jews by the Nazis.

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can be committed both in international and non-international armed conflicts/ I it is difficult to support the view that the Genocide Convention, at the time in which it was drafted, reflected any emerging tendency of international law establishing the principle ofindividual accountability in non-international armed conflicts. It is then of no surprise that common article 3 to the Geneva Conventions, drafted the following year, in 1949, did not provide a specific enforcement system for breaching the treaty obligations regulating internal armed conflicts. 22 Finally, the Genocide Convention is also very important because, as an alternative to trials run "by a competent tribunal of the State in the territory ofwhich the act was committed", it calls for the establishment of an "international penal tribunal" to try persons charged with genocide. (Article 6). It took fifty years for the creation of an international tribunal with jurisdiction to try those suspected of having committed genocide.

2.

1949-1980: No liability for the violations ofthe law of internal armed conflicts

During the years 1949-1980, during which common article 3 of the Geneva Conventions and Protocol II were drafted, it appears that the individual criminal responsibility of those who violated the law of internal armed conflicts was neither on the international nor national agenda. Although wartime offences were Widely committed, only rarely were the perpetrators brought to justice. In the next few sub-sections - which deal with the years 1949-1980 - the provisions relating to criminal sanctions embodied in common article 3 and in Protocol II are analysed. Furthermore, in order to show the attitude of states towards criminal responsibility for violations of humanitarian law occurring in internal armed conflicts, domestic judicial proceedings, together with the view on the issue of state representatives, are also shortly analysed.

2.I.

Article 3 Common to the Geneva Conventions and enforcement measures

Common article 3 establishes a set of rules that "each Party to the conflict shall be bound to apply, as a minimum", but it does not address the problem of actions to be taken in case the fighting parties fail to respect such rules. The only provision that refers to the problem of criminal sanctions is embodied in paragraph I( d) which prohibits "summary justice". Although this provision is important as

21

22

International Court ofJustice, Judgement of lIth July 1996. Case concerning application ofthe Convention on the Prevention and Punishment ofthe Crime of Genocide (BosniaHerzegovina v. Yugoslavia). Para. 31. It should be recalled, however, that the general enforcement provisions - not the grave breaches provisions - apply to all violations of the treaty other than grave breaches and, therefore, also to common article 3. See supra, chapter II, footnote 101.

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during the conduct of hostilities the passing of sentences and executions without a proper trial has been too common a practice, it remains in a certain way "abstract" as it does not provide criminal sanctions for its violations. Article 3 affirms that the state retains the right to repress the offences related to armed conflicts not of an international character under its national law. Therefore, national courts can punish violations of article 3 committed by both sides; but, although the application of criminal sanctions by national courts is the preferred way to punish the law-breakers, it is likely that, in the judicial proceedings that take place during the conduct of hostilities, political issues play an important role. There is, therefore, the real risk of human rights abuses and of an unbalanced justice. As mentioned supra, in chapter II, the provisions ofthe Geneva Conventions of 1949 relating to the principle of individual culpability also cover the violations of Common Article 3. 23 The traditional approach of interpreting the provisions of this article as a separate "convention", untouched by the remaining provisions addressing international conflicts, had, however, the effect of rejecting this interpretation.

2.2.

I949-I98o: no prosecutionfor those who commit wartime offences

During the war of nationa1liberation in Algeria (1954-1962) torture had become an institution. As explained by General Massu ''A sine qua non of our action in Algeria is that we should accept these methods [torture] heart and soul as necessary and morally justifiable". 24 In 1958, in trying to tackle the problem, the French government (generally silent on the issue) envisaged that those who violated the rules should be held accountable.251his is an important statement considering that anti-colonial wars were, at that time, regarded as internal. 26 The judicial system, however, did not help. In October 1961 three French officers who had confessed to having tortured to death an Algerian were acquitted by the Paris Military TribunaL Three others, who also admitted to having used torture, were just given the sentence of

23

24 25

26

It is referred to respectively articles 49,50, 129, 146 of the Geneva Conventions, which state that "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". Vidal-Niquet, P., Torture: cancer oj democracy, France and Algeria I954-62, Penguin Books, Harmondsworth 19 63, p. 37. In particular, according to an order published by General de Gaulle, "all military operations [...] should be carried out stricdy in accordance with the rules laid down. To this end, commanders are to be held fully responsible for all happenings within the area of their command". Q!Ioted in ibid., pp. 93-94. See surpa, chapter IV.I.

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a £10 fine. 27 Although two Generals had been condemned to fifteen year's imprisonment in May 1961, France was reluctant to punish those responsible for the crimes during the war. Eventually, in March 1962, an amnesty decree was issued for Algerians and members of French forces for acts committed in Algeria. The amnesty also included those who had already been condemned. Neither was the British government, in the same years, willing to investigate alleged violations of the British police force in quelling the Mau Mau revolt in Kenya. Mrs Castle, an ex-Chairman of the Labour Party who spoke out saying that the British "troops were 'permitted and even encouraged'to employ needlessly brutal methods in 'hot pursuit' [... ] was censured and sanctimoniously called to order from all sides". 28 In Uganda, in 1974, the results of a commission ofinquiry set up by President Idi Amin Dada in order to investigate the case ofdisappearances also did not contribute to the enforcement of the law. Rather, following the commission report, which found that a security body set up by Amin was responsible for the disappearances, not only the atrocities committed by the Amin government increased, but also the four commissioners were persecuted by the state in reprisal for their work. One was even sentenced to death. The trials held in Cambodia by the new government against the former Cambodian leaders Pol Pot and leng Sary in 1979 should also be mentioned. 29 They took, in fact, place when the alleged criminals were still in control of the territory. Although the outcome of the trials was unsatisfactory, it is significant that the organizers of the trials invited foreign lawyers to attend them in order to make the trials reflect a sort of internationallegitimisation. 30 It should be noted that the general reluctance of states, in those years, to address the prosecution of war criminals applied to both crimes committed in international and internal armed conflicts. Even countries, which showed an interest in the prosecution of war criminals, limited their interest to the prosecution of those charged with crimes committed during World War II. In this respect, it is significant that countries such as the Netherlands, who were willing to prosecute those responsible for crimes committed during World War II, failed to punish their own armed forces for the crimes committed in their colonies. 3 ! The occasional prosecutions which took place in the domestic framework, such

27 28 29

30

31

Vidal-Niquet, P., Torture: cancer ofdemocracy, France andAlgeria I954-62, pp. 120-121. Ibid., p. 159 During the Khmer Rouge regime from the years 1975-1979 it is calculated that about 2 million Cambodians were killed out of a population of about 8 million. See generally, De Nike, ]., Q!tigley, J., and Robinson, K.J., Genocide in Camhodia: documents from the trial of Pol Pot and Ieng Sary, University of Pennsylvania Press, Philadelphia 2000. It is, in fact, reported that Dutch forces committed several atrocities against the Indonesian population between 1945-1949. See further below.

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as the prosecution against First Lieutenant William L. Calley and other officers for the events at My Lai during the Vietnam War,3 2 were not satisfactory. Whilst, in fact, all officers either were found not guilty or the charges against them were dismissed, Lieutenant Calley was found guilty, but served only 3 years under house arrest, that represents a light sentence for the charges of which he had been found guilty. In this context it is of no surprise that Protocol II Additional to the Geneva Conventions does not contain provisions for its enforcement. It seems that during those years the institution of criminal proceedings did not meet the political interests of states. The patchy punishment ofwar criminals was carried out more in response to contingent political needs than in adherence to an existing principle of individual criminal responsibility. This was reflected in Protocol II. 2.3.

Protocol IIAdditional to the Geneva Conventions and enforcement measures

Protocol II specifies and enlarges the provisions of common article 3 relating to the judicial guarantees for people who are charged with crimes during internal armed conflicts but, similarly to common article 3, Protocol II maintains that the established authorities retain the power to punish those alleged to have committed criminal offences. Therefore, this provision raises the same problems as common article 3 rules. Whilst, in fact, on the one hand, it can hardly be argued that international humanitarian law has expressly given fighting groups the authority to punish persons alleged to have committed crimes relating to the internal armed conflict, on the other hand, to leave this competence only on the incumbent government could be open to abuse. 33 The fears that fighting groups could be given the authority to prosecute were so strong that the provision of ne his in idem was not embodied in Protocol II on the basis that such a principle could not apply between the courts of the government and the courts of the rebel;34 in fact, "when a rebel has been condemned or acquitted by a rebel court should he no longer be arrested or punished for a breach of national law of the country?"35 Furthermore, even if the parties respect the provisions embodied in article 6(2) ofthe Protocol, it remains that the authorities in power could appear to be too "mild" in punishing those who fight on their side and unduly hard in punishing members of the opposing party. The 32

33

34

35

American troops, supervised by several company grade officers, including Lieutenant Calley, murdered hundreds of South Vietnamese non-combatants. Most of them were women, children and old men. Moreover, during the massacre, rape was also committed. See Plattner, D., "The penal repression of violations of international humanitarian law applicable in non-international armed conflicts", 278 JCRC 409 (1990) p. 415. Bothe, M., Partsch, K.J., and So1£, W.A., New rules for victims of armed conflicts, M. Nijhoff Publishers, The Hague 1982, p. 650. Ibid.

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difficulties in guaranteeing "due process" during the conduct of hostilities have been summarized as follows: "Just as trials by one's side run the risk of appearing biased in favour of the accused, so trials by the other side may be seen as biased against the defendant. Such a trial looks like revenge by the party having custody. There is the risk of actual or apparent unfairness against the accused". 36

These considerations are a call for the institution of an international criminal court. In 1977, when Protocol II was drafted, they did not manage to overcome the fears of governments that international criminal responsibility could imply recognition of organized groups as having international responsibility.37 As seen supra, in chapter IV, during the drafting process of Protocol II, the political focus authority was not counter-balanced by international society concerns and by bodies who take a situation on the ground focus. This had the effect of making the treaty provisions of Protocol II reflect the position of states, namely a political authority focus. Similarly to common article 3, Protocol II neither contains provisions relating to its violations, nor entails the principle of criminal responsibility. Protocol II offers a few judicial guarantees for those charged with crimes related to armed conflicts, but it does not give any indication of which violations can be prosecuted, neither does it support the view that those who violate its provisions shallbe punished. It should be noted, however, that there was no doubt that conduct in breach of Protocol II was unlawful and that states could bring proceedings against those responsible for offences in the territory and, mainly in civil law jurisdictions, against their own nationals. The question was whether it could apply to criminal proceedings under universal jurisdiction as the Protocol is silent on the issue. Only a shift in focus3 8 brought about significant changes in the process of criminalizing the violations of the rules of law applicable in internal armed conflicts.

36

37 38

Hampson, F.]., "Violations of fundamental rights in the former Yugoslavia, II. The case for a war crimes tribunal", Occasional Paper no. 3 1he David Davies Memorial Institute ofInternational Studies, 1993, pp. 6-7· On the issue see generally Plattner, D., "The penal repression of violations of international humanitarian law applicable in non-international armed conflicts", p. 416. A shift from a political authority focus to a situation on the ground focus. See supra, chapters III and V, and further below, the conclusions.

I44

3.

Chapter VI

198o-the present: The prosecution ofwar criminals is on the national and international agenda

In the last two decades of the twentieth century there has been an increasing concern both in international fora and national tribunals in addressing the enforcement of the law of internal armed conflicts. On the one hand, national tribunals, relying on the principle of universal jurisdiction, have started to try under their domestic proceedings non-nationals who have committed war crimes, crimes against humanity and genocide abroad. On the other hand, international bodies, and in particular the UN Security Council, have started to ask for the prosecution of those who violate the law of internal armed conflicts. Furthermore, the establishment of the two ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) has enormously contributed to the development of the law applicable to non-international armed conflicts. This section briefly analyses this background to the statute of the ICC focusing, in particular, on the work of the International Criminal Tribunal for the Former Yugoslavia since, as mentioned above, the case-law of the Yugoslav Tribunal had a tremendous impact on the formation of the norms of the statute relating to internal armed conflicts. 39 3· I .

7he enforcement ofthe law of non-international armed conflicts at the national level

In the 1980s several proceedings against those who committed war crimes during World War II started to be instituted in several countries. Although it seems that the issue has been revisited in the past I5 years as some states were worried that they might have provided a safe refuge for World War II criminals, these proceedings were also illustrative of a new tendency on the international sphere. Interestingly, proceedings for violations of human rights and humanitarian law started, in fact, to be instituted not only against World War II criminals, but also against those who committed such violations in internal conflicts in other countries. This development appeared evident in a case heard by a German Court in I994. In particular, the Bosnian Serb, Dusan Tadic, who escaped to Germany during the Yugoslav war, was taken into custody in Germany and charged with genocide. The case did not evolve further in German courts as they surrendered him to the ICTY, but it is important as it represents the first war crimes case in 39

'The choice of focusing on the case-law of the ICTY is, therefore, simply dictated by the scope of the study. On the other hand the impact of the work of the ICTY on the statute of the ICC could be of particular importance as the ICTY was established before the ICTR. 'The purpose of the chapter also explains why the jUrisprudence examined is limited to the one developed up to the drafting of the statute of the ICC (1998).

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the second half of the last century not related to Nazism in Germany. Similarly, Austria had to cope with an alleged Bosnian Serb admitted to Austria as a refugee, and with no hesitation took him into custody and tried him. Furthermore, both Italy and Spain have prosecuted Argentinean military officials for the crimes committed during the military regime in Argentina. Spain also started to work on the changes to be made to its penal code in order to punish those who commit war crimes, crimes against humanity and genocide. As regards the prosecution of fighters, it is illustrative that Italy discussed the possibility of trying Ocalan, the Kurd leader of the PKK when he was kept in custody in that country for the crimes committed during the conflict against Turkey. Finally, it is noteworthy that heads of states and high-ranking officials have also started to face criminal responsibility in their own countries. For example, whilst in Latin America several proceedings have been brought against General Pinochet in Chile,40 in Europe, the former Yugoslav President, Slobodan Milosevic, was first arrested in Serbia and then surrendered to the ICTY, where he was charged with crimes against humanity and violations of the laws and customs of war. 41 The Cambodian government has also started to prosecute several Khmer Rouge,4 whilst in Ethiopia, in 1994, proceedings were instituted to bring public officials before courts for past abuses, including genocide and crimes against humanity. As it appears, the tendency to prosecute war criminals is not limited to a particular geographical area, even if it seems that criminal proceedings are instituted only when there has been a change ofregime. Given this situation, a head of state, in order not to face criminal prosecution, could be tempted either to postpone the elections or not to accept the result. This problem highlights the importance of having an independent and international system of justice. It should also be noted that war crimes committed by their own nationals are still sparingly pros2

40

41

42

Under the settlement which restored the civilian rule in Chile, General Pinochet was granted the position of Senator for life. This recognition equated to a sort of amnesty. Pinochet was, however, arrested in London on 16 October 1998 following an international warrant of arrest issued by a Spanish Court. Pinochet was alleged to have committed acts of torture and of hostage taking during his rule of Chile, between 1973 and 1990. Eventually, he was returned to Chile on humanitarian grounds. As regards the arrest of Milosevic, it should be noted that it was carried out 24 hours before the deadline which the US had imposed expired. The timing, therefore, suggests that international pressure played a considerable part in it. It seems, however, that the Cambodian government is willing to prosecute only the Khmer Rouge who do not surrender. In the 1990S the international community has repeatedly addressed the need of bringing to justice those who committed atrocities in Cambodia between the 1975 and 1979. It has also proposed the institution of an international criminal tribunal. The government of Cambodia has, however, made it clear that it would prefer domestic trials. De Nike,]., Qyigley,]. and Robinson, K.]., Genocide in Cambodia: documentsfrom the trial ofPol Pot and Ieng Sary, p. 16.

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ecuted. For example, neither France nor the UK have fully investigated and prosecuted alleged violations committed by their own nationals in Algeria and in the Falklands, respectively.43 Furthermore, states have shown reluctance to prosecute their own nationals who have committed atrocities during peacekeeping or peace enforcement missions. 44 3. 2 .

7be enforcement ojthe law oj non-international armed conflicts at the international level

At the international level, the principle of individual accountability for violations committed during internal conflicts has been repeatedly addressed by UN bodies and, in particular, by the Security Council, as violations of humanitarian law could endanger international peace and security. A few recent examples show the attention devoted to the issue. Following the dramatic events ofthe Yugoslav war the international communitywas under pressure "to do something".45 Among other steps, the UN Security Council established, under article 41 ofthe UN Charter, an International Tribunal as a measure contributing to the restoration and maintenance of peace. 46 Whilst the issues relating to the impact of the provisions of the Yugoslav Tribunal on the drafting of the statute of the ICC will be dealt with further below, here it should be noted that, since the creation of the ICTY, accountability is on the international agenda. Since then, in fact, there have been several calls for the establishment of other ad hoc tribunals and, in particular, of a permanent criminal court. On 8 November 1994, the Security Council adopted Resolution 955 in order to set up an International Criminal Tribunal investigating the atrocities committed in the Rwandan civil war. Although it was speculated that the Security Council was, in a certain way, "compelled" to establish the tribunal because of the existence of the Yugoslav Tribunal, it is noteworthy that the respect for international humanitarian law was regarded by the Security Council as a key point in tackling the internal conflict. 47 Furthermore, the creation of the Rwandan Tribunal was of particular importance as, unlike the Yugoslav Tribunal, it was established for what was clearly categorized as a non-international armed conflict. In particular, Resolution 955 "was unprecedented because it explicitly recognized that the serious nature of the offenses alone, and not the refugee flows 43 44

45 46

47

By contrast, it should be noted that in 1995 the Netherlands started to become aware of the crimes committed by Dutch forces in Indonesia, between 1945-1949. See generally Beigbeder, Y.,judging war criminals: the politics of internationaljustice, Macmillan Press LTD, London 1999, pp. 126-127. See supra, chapter 111.4. It established the tribunal by SC Resolution 827 on 25 May 1993. See SC Resolutions drafted soon after the eruption of the conflict and the resolution which establishes the ICTR.

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or the possibility of the conflict spilling over into other countries in the region, justified recourse to Chapter VII". 4 8 The consideration that individual accountability could playa key role in the process of"conflict-resolution" also highlighted the need of an International Court, which, unlike ad hoc tribunals, could have a deterrent effect. Similarly to the Yugoslav Tribunal, the Rwandan Tribunal was established under chapter VII of the United Nations Charter. This meant that the decision taken by the Security Council was immediately effective and created obligations for all states. 49 In the context of the study this is of particular importance as the international community, at the time of the establishment of the Rwandan Tribunal, had not recognized as international crimes violations of humanitarian law which occurred in internal armed conflicts. The approach taken by the SC was summarized in a report of the Secretary-General as follows: "[T]he Security Council [...] elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal,5 0 and included within the subject-matter jurisdiction of the Rwandan Tribunal international instruments regardless of whether they were considered part of customary international law or whether they customarily entailed the individual criminal responsibility of the perpetrator of the crime. Article 4 of the statute, accordingly, includes violations of Additional Protocol II, which, as a whole, has not yet been universally recognized as part of customary international law, and for the first time criminalizes Common Article 3 of the four Geneva Conventions".51

The contribution of the UN to criminalizing violations of the law of internal armed conflicts was not limited to the establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda. On 15 July 1997, the United Nations Secretary-General set up an investigative team in Congo in order to investigate complaints of atrocities in the Eastern part of the country. The team was given the authority to investigate, among other crimes, violations of humanitarian law and crimes against humanity. The team, however, "because of the "total lack of cooperation" on the part of the Congolese 48 49

50

51

Morris, V. and Scharf, M.P., the International Criminal Tribunalfor Rwanda, vol. I, Trasnational Publishers, Irvington-on-Hudson, 1998, p. 103 Another possible approach would have been to establish the Tribunal by treaty, but this had, inter alia, the disadvantage of being subject to the ratification of states for its entry into force. The applicable law of the Yugoslav Tribunal was, in fact, limited to international law rules which were beyond doubt part of customary law. Morris, V. and Scharf, M.P., 1he International Criminal Tribunalfor Rwanda, vol. I, p. 124. Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), para. 12, UN Doc. 5/1995/134 (1995)

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authorities, who "had harassed and intimidated witnesses who had testified before the investigators""52 was withdrawn in April 1998. In Resolution 1315 on 14 August 2000 53 the UN Security Council, despite the fact that the Lome Peace Accords of]uly 1999 had granted an amnesty to all the parties, established a special court to prosecute "persons who bear the greatest responsibility" for "crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law, committed within the territory of Sierra Leone". Similarly, in the conflicts in Afghanistan, Somalia and Burundi, the Security Council stated that those who violate humanitarian law should be held personally responsible. The call for the prosecution of those responsible for violations of humanitarian law also came from other UN bodies,54 among which the Human Rights Commission that, for example, in its Resolution 2000/58, "[c]a1l[ed] upon the Government of the Russian Federation to establish urgently, [... an] independent commission ofinquiry to investigate promptly alleged violations ofhuman rights and breaches of international humanitarian law committed in the Republic of Chechnya in order to establish the truth and identify those responsible, with a view to bringing them tojustice andpreventing impunity".55

Although these examples show that accountability has become a priority and a way of dealing with internal conflicts, the drafting process of the statute of the ICC was very difficult and the provisions relating to internal armed conflicts do not even go as far as the findings of the ad hoc international tribunals. As shown in the previous chapters, it seems that, even when states recognize the existence of certain principles,5 6 when the application of such principles could affect them, they are reluctant to embody them in treaty rules. The establishment of ad hoc tribunals is generally accepted by most countries. The establishment of a Permanent Court having jurisdiction over individuals from all states met several objections. Before analysing the formation of the statute of the ICC, it is first necessary to analyse briefly the main issues raised by the statute of the ICTY. This is very important as they show that the work of the ICTY has enormously contributed to the adoption of the provisions of the statute of the ICC relating to internal 52

53 54 55 56

of human rights in the Democratic Republic of the Congo, submitted by the Special Rapporteur, Mr. Roberto Garreton, in accordance with Commission resolution 1998/61. E/CN.4!1999/31 Para.7. The Team submitted its report (8/1998/581,29 June 1998) on 30 June 1998. It gave a detailed account of human rights and humanitarian law violations committed by the fighting parties. See also futher below, the conclusions. See supra, chapter 111.3. Emphasis added. See also supra, chapter 111.3. See for example, supra, the view of Chamberlain during the Spanish civil war and other examples analysed in chapter II. Report on the situation

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armed conflicts. Without the case-law of the ICTY, the statute would probably have been adopted, but it would probably have been different.

3.].

The work ofthe IC1Y relating to internal armed conflicts

The statute of the International Tribunal for the Former Yugoslavia expressly states that the principle of individual criminal responsibility applies in internal armed conflicts only with regard to those who commit crimes against humanity. In particular, whilst article 5 of the statute of the tribunal states its jurisdiction to prosecute persons charged with crimes against humanity whether committed in international or internal armed conflicts, article 3, which deals with "violations of the laws or customs of war", is silent on the issue related to the status of the conflict. 57 Thus, since the Yugoslav war, and, in particular, the conflict in BosniaHerzegovina was characterized by both internal and international aspects,5 8 the Yugoslav Tribunal had to address the question ofwhether, at the time of the creation of the tribunal, there existed a category of"war crimes" also in internal armed conflicts and if the commission of such crimes entailed the principle ofindividual criminal responsibility. It is generally held that, in writing the statute for the International Tribunal for the former Yugoslavia, and, in particular, articles 2 and 3, the UN Security Council regarded the Yugoslav conflict as an international armed conflict.5 9 Given this situation, articles 2 and 3 of the statute, which deal, respectively, with grave breaches of the Geneva Conventions of 1949 and the violations of the laws and customs of war, have raised controversial interpretations. In order to regard the above articles as applicable also in a context of non-international armed conflicts, it was, in fact, first necessary to assess whether or not the violations of the humanitarian law provisions in internal armed conflicts could be considered violations of the laws or customs ofwar falling within the scope of such articles.The wording of article 2 of the statute suggests that its application is limited only to international armed conflicts. This view was clearly articulated by the Secretary-

57

58

59

In Article 3 of the statute, there is, in fact, no mention of the character of the armed conflict. "[Whilst, in fact,] the hostilities between the Bosnian government forces and troops from Croatia and SerbiaIMontenegro were [...] international in character, [...] it is difficult to see how the hostilities between the Bosnian Government forces and dissident Muslim forces in Bihac can be regarded as anything other than an internal conflict. The fighting between the Bosnian Government forces and dissident Muslim forces after the JNA [...] withdrew from Bosnia-Herzegovina [...] is admittedly more difficult to charachterise, especially since there is a sharp conflict of views regarding the degree of continuing involvement by the JNA after its formal withdrawal". Greenwood, C., "International Humanitarian law and the Tadii Case", 7 EJlL 265 (1996), p. 272. Meron, T., "Criminalization of internal atrocities", 89 AJlL 554 (1995) P·55 6.

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General in his report, in which, commenting on article 2, he only mentioned international armed conflicts. 60 The traditional interpretation, according to which the "grave breaches" provisions of the Geneva Conventions and Protocol I Additional to those Conventions only apply to international armed conflicts was also confirmed by the final report of the Commission of Experts 61 and by the Appeals Chamber of the Yugoslav Tribunal. In particular, although the Appeals Chambers recognized that there is an emerging trend that tends to extend the grave breaches provisions to internal armed conflicts, it concluded "that, in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts". 62 By contrast, with regard to the interpretation of article 3 of the statute, the Appeals Chamber disagreed with the view expressed by the Commission of Experts in its final report. In particular, the Commission found that "there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes". 63 Similarly, the International Committee of the Red Cross, expressing its opinion on the establishment of an International Criminal Tribunal for the former Yugoslavia, stated that "according to International Humanitarian Law as it stands today, the notion of war crimes is limited to situations of international armed conflict". 64 Despite such conclusions, the Appeals Chamber, in the Tadii case, stated that, as article 3 of the statue of the Yugoslav tribunal is "intended to cover both Geneva and Hague law" and the violations enumerated in this article are only illustrative, "article 3 may be taken to cover all violations of international humani60

Report of the Secretary-General Pursuant to paragraph 2 of Security Council Resolution 808(I993), U.N. S/25704 C3 May 1993). See Bassiouni, C.M. and Manikas, P., the law of the international criminal tribunalfor theformer Yugoslavia, Transnational Publishers,

Irvington-on-Hudson 1996, pp. 492-493. 61

62

Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (I992), U.N. SCOR Annex, U.N. Doc. 5/19941674 (27 May 1994). International Criminal Tribunal for the Former Yugoslavia: Decision in Prosecutor v. Dufko Tadii, Case No. IT-94-1-AR72, (2 October 1995), para. 84. Hereinafter the Tadic case. It is noteworthy that the decision on this issue was not taken unanimously.

Moreover, in discussing the argument, the Appeals Chamber quoted a statement of the US Amicus Curiae Brief in which it was argued that "the 'grave breaches' provisions of article 2 of the International Tribunal Statute apply to armed conflicts of a non-international character as well as those of an international character". Ibid. 63

Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (I992), reported in Bassiouni, C.M. and Manikas, P., the law of the International Criminal Tribunalfor theformer Yugoslavia, p. 509.

64

Some preliminary remarks by the International Committee of the Red Cross on the setting-up of an international tribunalfor the prosecution ofpersons responsible for serious violations of international humanitarian law committed on the territory 'of the former Yugoslavia. DDMl]UR/422b, 25 March 1993.1he full text can be found in Morris, V. and Scharf, M.P., An insider's guide to the international criminal tribunalfor theformer Yugoslavia, vol. II, Transnational Publishers, Irvington-on-Hudson 1995, p. 391.

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tarian law other than the "grave breaches" ofthe four Geneva Conventions falling under Article 2". (Para.87. Emphasis in the original). In short, "article 3 functions as a residual clause designed to ensure that no serious violations of international humanitarian law are taken away from the jurisdiction of the International Tribunal". (Para.9I). Therefore, according to the findings of the ICTY, provided that certain conditions are fulfilled, violations of the laws and customs of war fall within the jurisdiction of the tribunal no matter whether such violations are committed in international or non-international armed conflicts. (Para.94). As regards the principle of international criminal responsibility in internal armed conflicts, the Appeals Chamber, quoting the findings of the International Military Tribunal ofNuremberg,65 stated that there is no doubt that violations of humanitarian law entail individual criminal responsibility, regardless of whether they are committed in international or internal armed conflicts. (Para.I29). Furthermore, in addition to the arguments provided by the Nuremberg tribunal, the Appeals Chamber analysed the developments of national law and military manuals along with relevant examples of recent civil wars,66 and it concluded that "customary international law imposes criminal responsibility for serious violations ofcommon article 3, as supplemented by other general principles and rules on the protection ofvictims ofinternal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combatant in civil strife". (Para. 134).

Finally, in summarizing the argument it is worth quoting in full the final findings on the issue of the Yugoslav tribunal in the Celebici case: 67 "The fact that the Geneva Conventions themselves do not expressly mention that there shall be criminal liability for violations of common article 3 clearly does not in itself, preclude such liability. Furthermore, identification of the violation of certain provisions of the Conventions as constituting "grave

65

66

67

In particular, the Tribunal of Nuremberg held that "a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches" and that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced". Q!toted in the Tadit case, para. 128. On this issue and, in particular, on the provisions of individual responsibility in national legislation and in the jurisprudence of national courts, see Graditzky, T., "Individual criminal responsibility for violations of international humanitarian law committed in non-international conflicts", 322 IRRC 29-56 (1998). International Criminal Tribunal for the former Yugoslavia: Decision in Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim DeNc and Esad Landzo, Case No. IT-96-21: T, (16 November 1998). Hereinafter the Celebici case.

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As shown by this overview, at the time of the establishment of the ICTY, the state ofinternational law on the subject-matter was extremely controversial. Even authoritative bodies, such as the Commission of Experts and the International Committee of the Red Cross, supported, at that time, a view different from the findings of the ICTY. The Yugoslav Tribunal, on the other hand, claimed that it applied existing customary international law. Whatever the state of international law at that time, even if the application of laws has always an irreducible part of "creation" and it is the task of the tribunals to spell out the customary rules and clarify the positive law,68 the lack of clear laws before the institution of the Yugoslav tribunal has made its work particularly significant for the further development of rules of law relating to internal armed conflicts and, in particular, for those embodied in the statute of the ICC. This also seems to confirm that international bodies, within the limits of their mandates, once created, develop a momentum of their own,6 9 which could evolve differently from state's desires. Once they have so evolved, it is no longer possible to ignore this development in negotiating new treaty rules. In other words, whether states decide to include the findings of international bodies in treaty rules, or decide not to do so, they have to take into account those findings. This is reflected in the negotiation process of the statute of the ICC. 4.

The International Criminal Court

This section analyses the formation of the statute of the International Criminal Court against the background analysed above.

68 69

On this issue see generally Scharf, M.P., "A critique of the Yugoslavia war crimes tribunal", 25 DenverJournal oJlnternational Law, 3°5-312 (1997)' See supra, chapter 111.3.

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Short overview ofthe main stages that have led to the adoption of the Rome statute

Although both governments and international public opinion have longlO called for the creation of a permanent international criminal court as "[i]n the prospect of an International Criminal Court lies the promise of universal justice",71 only in 1989, did the General Assembly request the International Law Commission to readdress the issue. 72 In 1994, the International Law Commission submitted a final draft statute for an International Criminal Court to the General Assembly, which established an Ad Hoc Committee to review the draft statute. In order to address the issues raised by the Committee's report, in 1995, the General Assembly created a Preparatory Committee on the Establishment of an International Criminal Court. In 1995 a Coalition ofNGOs for an International Criminal Court (CICC) was also formed in order to advocate the creation of an effective International Criminal Court. The CICC brought together a network of over 1,000 NGOs, international law experts and other civil society groups. Since its creation, the CICC has fostered awareness of and support for the establishment of the Court. A series of regional conferences were also organized by NGOs, intergovernmental organizations, and governments. They soon became a forum where the issues raised by the draft text could be discussed. Finally, during the period 1996-1998, the General Assembly convened six Preparatory Committee Meetings, which, eventually, led to the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome in 1998. At the Conference delegations from 160 countries, 17 intergovernmental organizations, 14 specialised agencies and funds of the United Nations, and 124 NGOs were present. In addition, 474 journalists were accredited to cover the event)3 After intensive and difficult negotiations, the Conference managed to adopt a statute establishing an International Criminal Court for trying individuals accused of committing genocide, war crimes and crimes against humanity.74 The UN members voted for the adoption of the statute by 120 votes to 7, with 21 abstentions. 70

71 72 73 74

The call to create an international tribunal to try individuals that commit international crimes goes back to the First Hague Conference of 1899. See McCormack, T.L.H. and Simpson, G.]. (ed.), 1he law of war crimes, national and international approaches, p. 31. Statement of Kofi Annan, Secretary-General of the United Nations. The input to readdress the issue was given by Trinidad and Tobago, who was in part motivated by an effort to combat drug trafficking. Press Release L/ROM/22, 17 July 1998. The Court has also jurisdiction with respect to the crime of aggression, (art. S(d)), but this jurisdiction will be effective only once a provision defining such a crime will be

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It should be noted that the number of NGOs present at the Conference (124) almost equalled the number of states (160). This is illustrative of the international recognition of the role played by NGOs before and during the drafting of international law treaties/ 5 In particular, throughout the Conference, NGOs submitted position papers, which were also quoted in open debate. Their role was acknowledged both by governments and by the press, that "likened NGO influence to that of a major government"J6 Following the adoption of the statute of the ICC, the Clee has focused on calling upon states to maintain the integrity of the Rome Treaty during the work of the Preparatory Commission for the International Criminal Court and on persuading them to ratify the statute of the ICC. The ICRe also took an active part in the law-making process leading to the establishment of the International Criminal Court. In particular, it "made statements before the Preparatory Committee [...], the United Nations General Assembly and the Rome Diplomatic Conference on matters direcdy linked to the ICRC's mandate".?7 Furthermore, the ICRe also produced several studies on the issues debated at the Conference. As regards the commitment of states to the adoption of the statute, the impact of the decision of the United Kingdom to join the like-minded states should be mentioned. Following the change in the British government, the United Kingdom played, in fact, an important role during the negotiation process. The change in the attitude of the British government was particularly important as the UK is one of the permanent members of the Security Council and it took the decision of supporting the ICC even if other members of the Security Council opposed it/ 8 It also confirms that the work oflike-minded states,79 especially if such states have a high international profile, is extremely important for the definitive success of a campaign for new standards. 4.2.

1he ICC and non-international armed conflicts

The most controversial issues discussed at the Diplomatic Conference regarded jurisdiction, admissibility and applicable law. In particular, there was a lively debate on which crimes were to fall within the jurisdiction of the tribunal. The

75 76 77 78 79

adopted. (Art. 5 (2)). See supra, Chapter 111.4. Source: Human Rights Watch Website. (Visited: March 2000). Roberge, M.C., "The new international criminal court, a preliminary assessment", 325 IRRC 671 (1998), p. 672. In particular, the USA. During the drafting process of the statute of the ICC there were approximately 54 "like-minded" states. Arsanjani, M.H., "The Rome statute of the international criminal court", 93 A]IL 22 (1999), p. 23.

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inclusion of war crimes in internal armed conflicts proved to be one of the most difficult issues to be dealt with. Different opinions ranged from those states who did not even want to include war crimes in the jurisdiction of the court, to states that tended to put a particular stress on war crimes in internal armed conflicts. Eventually, the outcome was a compromise article that includes both "serious violations of article 3 common to the four Geneva Conventions" and "other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law". This was the first time that the concept ofwar crimes and individual criminal responsibility in internal armed conflicts were embodied in an international treaty. It is also remarkable that 16 out of the 50 war crimes in article 8 of the statute deal with conflicts which are not of an international character. This is illustrative of the high consideration in which internal armed conflicts have started to be taken up by the international community. The ICC has jurisdiction over crimes committed in "armed conflicts that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups". It is noteworthy that this provision resembles the definition of armed conflict given by the international tribunal for the former Yugoslavia in the Tadii case. In particular, the Yugoslav tribunal held that "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". (Para. 70). The similarities in the definition show the impact of the work of the Yugoslav Tribunal on the formation of the provisions of the statute of the ICC. As regards the mental element ofwar crimes in internal armed conflicts, the Preparatory Commission for the International Criminal Court, in preparing the elements of crimes, has also adopted an approach "in conformity with the caselaw of the ICTY". 80 By contrast, with regard to other norms, the provisions of the statute do not repeat the findings of the ICTY. The ICTY, by holding that "what is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife", 8 tended, in fact, to blur the differences between crimes prohibited in international and internal armed conflicts. The statute of the ICC, however, does not follow the findings of the ICTY. It does not include, for example, the prohibition of specific weapons to non-international armed conflicts and the prohibition of certain methods of conducting the hostilities, such as the prohibition of starvation as a means ofwarfare, which the ICTY regarded as applicable to non-international armed conflicts. In particular, the ICTY went I

80

81

Dormann, K., "Preparatory commission for the international criminal court: the elements of war crimes", 839 IRRC 771 (2000), p. 792. The Tadic case, para. IIg.

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so far as to hold that, with regard to internal armed conflicts, customary law prohibits "means and methods of warfare proscribed in international armed conflicts".82 Finally, a concession to those states, such as China and the Russian Federation that feared that the inclusion of non-international armed conflicts in the jurisdiction of the tribunal could "be used as a tool for unjustified interference with domestic affairs"83 was made in article 8(3) of the statute, which provides that "Nothing in paragraph 2(C) and (e) shall affect the responsibility ofa Government to maintain or restablish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means".

The drafting process of the statute of the ICC shows that, despite the involvement of "like-minded" states, of the IeRC, of the UN and of NGOs, the balance was more in the hands of those who take a political authority focus than in the hands of those who take a situation on the ground focus. Furthermore, those who take a political authority focus, namely states, continue to playa key role even after the creation of international tribunals as international judicial bodies, in order to perform their tasks, need the support of states. International tribunals do not have, in fact, a police force to arrest those charged with the crimes that fall within their jurisdiction. This makes them dependent on state security forces. 84 But states provide the tribunals with such forces only if this fits their political interests. The necessary co-operation of states with international tribunals also makes states be the key players with regard to the implementation of the law of war crimes. It appears that the application of the law of war crimes still depends mostly on the politically motivated will of states. In particular, as Ms. L. Arbour, the former General Prosecutor of the Yugoslav Tribunal has made it clear, if, in any way, international tribunals are affected by politics, this is reflected in the gathering of evidence. In other words, if states are interested in some prosecutions, they will allocate the tribunals with proper resources and means to collect evidence; if there is no such interest the tribunals are unable to work properly and, therefore, cannot have a deterrent effect. However, it should be noted that, if the wrongdoing is not punished, it is more difficult for the international community to assist in the process of reconciliation and to ensure that people do not think that they have to resort to self-help.

82

83 84

Ibid., para. 127. Lee, Roy S. (ed.), The international criminal court: the making of the Rome Statute, Kluwer Law International, The Hague 1999, p. 1222. There are also other forms of dependency upon states, such as intelligence and information available as a result of surveillance.

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Despite its flaws, the ICC statute represents a milestone in the development of treaty law rules applicable to internal conflicts. When the court is fullyoperative, there should no longer be cases in which "[a] person stands a better chance ofbeing tried and judged for killing one human being than for killing 100,000".8 5 Considering, however, that no domestic criminal law system manages to try all those suspected ofbreaking the law, it is necessary not to put unreasonable expectations on the work of the ICC. What is really important is that the ICC manages to become a system capable of acting as a deterrent. In order to do so, there needs to be a sufficient likelihood of prosecution. It is difficult to anticipate how long it will take for the ICC to represent a real restraining factor during the conduct of hostilities in internal armed conflicts. When the Court is fully operative, even if states, for a variety of reasons, might be not willing to effect transfers to the Court, particularly of their nationals, the experience with the ICTY and the ICTR86 does suggest that the mere existence of the ICC will mean that states will need to address the issue of what to do about a suspect. Once it becomes known that a suspect is in their territory,8 7 states will, in fact, then have a choice: to prosecute themselves or to transfer. It will be politically difficult for them to do nothing, particularly in notorious cases. 88 Although it is still a long way89 from being able to say that the likelihood of prosecution for violations of the laws and customs of war means that the rules have an effective deterrent function, this goals has come further in the last 10 years than could reasonably have been predicted 10 years ago.

85 86

87 88 89

Statement of Jose Ayala Lasso, former United Nations High Commissioner for Human Rights. For example, when Denmark had a suspect, it discovered that, in domestic law, it had not passed the legislation necessary to transfer someone to the ICTY. As the issue had become public, Denmark was forced to try the suspect in its courts. In the case of Sweden, this country offered its suspect to the ICTY but the Court did not accept him; again, Sweden, similarly to Denmark, could hardly ignore the issue and so it tried the suspect in its domestic courts. Finally, it is suggested that the reason the Belgians are engaging in the proceedings currently underway resides in the fact that they feel a sense of shame and responsibility for what happened in Rwanda. Other possible motives include the need to assist the judicial process. Suspect criminals are, in fact, likely to be tried more quickly in Belgium than before the Courts in Rwanda or before the ICTR. The media and N GOs will have an important role to play in publicising the presence of suspects. See supra, footnote 85. It appears that the use of reason is far from playing a major role in the history of humankind.

Conclusions

It appears that in the past decade there have been many developments in the international law ofinternal armed conflicts. Although the increase in the number of treaty rules has affected both international and non-international armed conflicts, the rules regulating international conflicts have not increased in the same proportion as those regulating internal armed conflicts. The explanation, in light of the findings of this study, of the reasons for the recent developments in the law of non-international armed conflicts must be necessarily tentative. As the situation which treaty norms are intended to address changes, one would expect to find changes in the norms themselves, just to keep the law upto-date. It is therefore no surprise that three of the main elements! which have affected the formation of treaty rules regard: r) the changingface of non-international armed conflicts; 2) the impact of the facts relating to the armed conflicts and 3) the changes in the tools used to fight. The fourth principal element affecting the formation ofthe treaty rules, however, concerns changes in the treaty lawmaking process itself, including the change in the actors involved in the process. This element has a consequential impact on the substantive norms. On occasion, this may be decisive, in the sense that the treaty would probably not have been concluded were it not for the presence of the fourth element. Possible examples include the Ottawa Convention banning the stockpiling and use of anti-personnellandmines and the statute of the International Criminal Court. Theformation oftreaty rules applicable in non-international armed conflicts

As regards the first issue, (i.e., the changing face of non-international armed conflicts), there has been an increase in the number of internal conflicts and in the number of civilian casualties during such conflicts. Furthermore, this phenomenon is no longer confined within the borders of the country in which the conflict breaks out, but it has international repercussions, as illustrated by the problems caused by trans-border refugee flows. This makes other states react differently from the way they did in the past to the outbreak of non-international armed conflicts. In other words, the perception of the importance of such conflicts For more details see supra chapters III -V.

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has recently changed. The international community, having realized that there is the risk of fragmentation for newly created states and that this could end up in internal armed conflicts with international repercussions, has put the issue on the top of the international agenda and has tried to regulate it. The perception regarding non-international armed conflicts has also changed because of the impact of such conflicts on public opinion. Today more people are aware ofwhat happens in other countries. The facts relating to armed conflicts are more accessible, more immediate, and more detailed. The change in technology has brought a change in the impact of the facts. Today's news actually happened today. Visual images may have a dramatic effect on public opinion, which states need to take into account in their political decision-making. Furthermore, the impact of internal armed conflicts on the international scene has also changed because of the activities organized by NGOs.The interaction between the media and NGOs leads to more pressure upon governments, which might, eventually, feel compelled "to do something".2 The changes in technology have also brought about changes in the tools used by fighters. For example, there has been a change in the availability and use of mines, and new weapons are being created. This has contributed to making armed conflicts more cruel and with serious effects on a large number of people, even after the close of military hostilities. As a result, the dramatic effects on the population caused by such weapons have increased the impact of non-international armed conflicts on world public opinion. In addition to the consequences of the armed conflicts in se, there are, in fact, the consequences of the specific weapons used, such as the long-term effects caused by the use of anti-personnel mines, chemical and biological weapons. Finally, the formation of treaty norms relating to non-international armed conflicts might appear to be more successful now as it is also the result of the combination of the efforts of actors other than states. In fact, previously, states had the monopoly of the treaty law-making process, whereas now new actors have started to play an important role. In other words, although states still have a monopoly on agreeing, signing and ratifying a text, they are subject to pressure from a wider range of different "sources"3 in establishing what their position is. The establishment of independent bodies specifically designed to deal with armed conflicts, such as the creation of the ICTY and the ICTR, has also contributed to stimulate the debate on the rules regulating internal armed conflicts. These changes, along with the different perception and impact of non-international armed conflicts, seem to have made the drafting of treaty norms in noninternational armed conflicts easier than in the past.

2

3

See supra, in particular chapters III and V. The term "source" refers to the elements responsible for the evolution, formation and development of the treaty norms applicable in non-international armed conflicts.

Criminalizing the Violations ofthe Rules ofLaw

r6r

The participation of new actors in the treaty law-making process does not, however, appear to be a sufficient explanation for the increase in treaty norms applicable in internal armed conflicts, particularly since there appears to have been no change in the essential problem. It emerges clearly from the material considered in chapters I and II that there are two principal issues concerning the regulation ofinternal conflicts. The first concerns the fear of states that, in dealing with rebels as fighting entities, as opposed to merely individuals, they may be perceived to be recognizing and!or even legitimating the struggle of the rebel group. This issue may be labelled the political authority focus. Every type of "source", which has focused on this question, has been reluctant to countenance imposing restrictions on the power of the state to deal with "rebels". The other focus takes as its starting point the situation on the ground. When it comes to setting restrictions on the way in which hostilities are conducted and on the protection ofvictims, it is possible to go much further. In chapter r, for example, Vattel, who unusually amongst early international lawyers, examined both issues, went further in putting restrictions on state conduct than other internationallawyers who concentrated on the first issue. Similarly, the preoccupation of military thinkers is with the fighting. In practical terms, that is likely to present similar problems in international and non-international armed conflicts. From the writings of Sun Tzu to the contents of the Lieber Code, it is possible to see a willingness of the military to accept limits on conduct, either because they make practical sense or else on moral/religious/humanitarian grounds. This obviously does not mean that every proposed restriction is acceptable to the military. In recent times, where the issue of the regulation of internal conflicts has been subjected to the political authority focus, little progress has been made. This is illustrated most notably in Protocol II to the Geneva Conventions and possibly also in the Amended Protocol II to the Conventional Weapons Convention. Where, however, the issue is presented in terms of the prohibited conduct of individuals, it has been possible to make more progress. Military thinkers and NGOs, albeit for different reasons, can, to some extent, make common cause. The main preoccupation of the NGOs may be humanitarian or based on the rights of potential victims but this is readily translatable into prohibiting certain conduct and reinforcing the prohibition with criminal sanctions. NGOs may wish to go much further in this direction than the military. It is, nevertheless, significant that, where the focus is on the conduct of individuals, N GOs are not necessarily opposed by military thinkers. Furthermore, where NGOs agree with political representatives, as happened during the Ottawa process, then they can defeat military ojections. However, as the work has shown, this does not mean that states, (i.e., "like-minded" states), plus one group, namely NGOs, will win. At Ottawa, in fact, the most sensitive issue for governmental authority thinking, the extension to non-international armed conflicts, had already been discussed during the drafting of Amended Protocol II; the only issue was the effects of landmines, and there states could

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accept the pressure from humanitarian focused groups. This might suggest that where a proposed change involves both a political authority issue and a humanitarian concern, it is best to have a two-stage process. As it appears, the shift in focus has removed the blockage seen in 1977 and has made possible the rapid expansion seen in the past decade of treaty norms applicable in internal armed conflicts. The apparent volt-face of the position of certain states may be partly explained by what becomes possible with this shift in focus. In 1977, Canada took a restrictive position in the negotiation of Protocol II. By 2000, Canada was a leading member of the "like-minded group", having played a key role not only in the Ottawa Convention but also in the negotiation of the Optional Protocol to the Convention on the Rights of the Child. It is not being suggested that the shift in focus is a complete explanation of the change. In particular, the recent focus on human rights issues and the vulnerability of democratic governments to the campaigning activities ofNGOs have also played a Vitally important role. 4 The fact that states might appear willing to apply certain principles of international law to armed conflicts outside their borders, but show reluctance to embody such principles in treaty norms applicable to them, makes it evident that a change in the "sources" and in the focus does not necessarily bring about a change in treaty rules. It is also the interaction of the "sources" - amongst which states willing to support NGOs goals playa key role - that is important in shaping treaty rules. States, however, will be keen to work with NGOs only ifand as long as their political interests match humanitarian concerns. There is no certainty that they will keep the momentum. For example, whilst the UK was extremely important in the drafting of the statute of the ICC, its minimalist draft ratification legislation ofthe statute ofthe ICC has attracted criticism. Canada, who was a key player during the Ottawa process, played a minimal role during the drafting of the statute of the ICC. The implementation and enforcement ofthe treaty rules applicable in noninternational armed conflicts

The fact that, as regards the formation of treaty rules, the tension between those concentrating on political authority and those whose primary focus is what happens on the battlefield seems to have evolved in favour ofthe latter category does not necessarily imply an improvement in the protection of the victims of internal armed conflicts. Only if the existing rules are respected and enforced will, in fact, 4

As the study has shown, inter alia, in order to change the balance, it is, in fact,~necessary to have "civil society" putting pressure on governments and independent actors, such as human rights monitoring bodies and international tribunals. Their interest seems, in fact, to be like that of civil society. Within their sphere they can be more effective because they reach decisions independently of states, but they are limited, unlike N GOs, by their limited mandates.

Criminalizing the Violations

ofthe Rules ofLaw

r63

the increase in the number of laws applicable equate to an in increase in protection. A treaty, to be effective, needs to be ratified and implemented. Where a treaty is unlikely to be applied in practice, the gap between the law and practice is not only a sign that that treaty is ineffective, but may have the effect of undermining respect for other treaties. It follows that there is no point in drafting new treaty rwes as an end in itself if the existing rules are not being implemented. New rwes should be made in case the situation on the ground changes so as the existing provisions can no longer address the new problems; however, even if the field situation does not change there could be the need of drafting new rules if the existing provisions are not capable of being applied in practice. Finally, new norms should be drafted, if the existing rules are generally respected, in order to make progress. These considerations explain why, at the present time, it might appear that the law of internal armed conflicts is movingfrom development to implementation. NGOs are also focusing more on ratification, implementation and enforcement of existing rules than on the development of new ones. Whilst the enforcement of treaty norms requires the willingness of states to do so, case-law, as it emerges from the ICTY, ICTR, national courts and, eventually, the ICC, will playa vital role in clarifying and giving substance to the rwes that have been agreed. Finally, whilst the statute of the ICC suggests a new willingness on the part of states to accept an independent judicial body exercising criminal jurisdiction, it is too early to comment on the likely impact of the ICC in practice. In some states, in the past decade, there has been a new willingness to bring criminal proceedings before their own courts on the basis of universal jurisdiction. If states wish to be seen to be behaving responsibly but do not wish to transfer their own nationals to the International Criminal Court, it might be possible to see an increase in the number of proceedings before their own courts in the future. The prospectsforfurther developments in the treaty rules applicable in internal armed conflicts

Since the study examines how the treaty rules are made, there may be lessons with regard to likely future developments. As discussed above, it might appear that when the actors involved in the formation of treaty norms take a conduct on the groundfocus, the treaty law-making process is likely to proceed. In the area of international law of internal armed conflicts, however, there has been no suggestion that new rules should be created. Furthermore, it should be noted that - as illustrated by the statute of the ICC - in relation to internal armed conflicts, there is the risk that states will only accept in treaty form less than already exists in customary law. New treaty law might even have the counterproductive effect of "freezing" the development of customary law.

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There is also the danger that states will be subject to pressure to conclude new treaty norms only on certain selected issues. This may have the effect of leaving unaddressed issues which are, in fact, in need of regulation. The way in which NGOs operate and the issues on which they focus, for example, may distort the legislative priorities in this field. That is particularly likely to be the case where the mobilisation of public opinion is necessary. However, some issues are of such a complexity as to make a NGO-type of campaigning very difficult. For example, an effective reduction in the incidence and scale of internal conflicts would require that effective measures be taken to prevent the transfer of small-arms to non-state fighters and that they be denied the ability to exploit a country's natural resources which may happen to be under their defacto control. Whilst a start has been made, as illustrated by the ED code on arms transfers, the UN register of conventional weapons transfers and the arrangements put in place to reduce the ability of the rebels in Sierra Leone to, exploit that country's diamond reserves, thereby financing the conflict, it has only scratched the surface. Effective action depends on a high level of agreement and commitment on the part of states. The political significance of these issues is such that progress is likely to be slow. Even if high-profile campaigns were to be organised, only certain countries are vulnerable to that pressure. Progress in areas such as this requires universal participation. Without that, fighters will he able to deal with non-participants in the campaign. This has been and continues to be a problem in relation to anti-personnellandmines. It will continue to be an overwhelming difficulty in other fields.

Index

A Abella case 57 Abu Bakr 73 Aksoy v. Turkey 86, 87, 88 Algeria armed conflict in 71 War of National Liberation 140 Amended Protocol II to the Conventional Weapons Convention II3, 114, 161 ICRC, role of II4, II5 NGOs, role of II4 American civil war 30, 31 amnesty 20,33, 105, 141 amparo 90 appreciation margin of 87 Aquinas, T. 3,4,5 Arbour, L. 156 Axworthy, L. 122, 123, 133 Ayala, B. IS

B Ban Treaty News 123 belligerency recognition of 14, 22, 23, 29,32 Bonhoeffer, D. 48 Brannigan and McBride v. UK 87 Breisach Trial 136 Brogan and Others v. UK 87

c Calvin,]. 4,7 Celebici case 151,155 Chamberlain, N. 40, 60 Chechnya resolution on 79, 80, 148 chivalry 25,31

Churchyard. T. 24 CICC 153 civilian population IS, 23, 24, 25,48, 64, 67, 106 civil society 35 civil war 22, 42 civil wars 3°,51 Coalition to stop the use of child soldiers 132 Code of Manu 24,135 Common Article 3 to the Geneva Conventions of 1949 49 ICRC, role of 49 threshold of applicability 49 violations of 139 compensation system 137 competent authority I, 3, 4 confidentiality rule of II6 consensus u8, 122, 123, 125, 127, 133, 134 considerations of humanity 32,38 conventional army 63 Conventional Weapons Convention 107 Convention on the Prevention and Punishment of the Crime of Genocide 138 counter-insurgency and human rights 64 in £1 Salvador 64 in Guatemala 64 strategy of 64 counter-insurgency strategy 25 Courts-Martial 137 crimes against humanity 144, 147, 148 cultural property 129 customary law xvi, 151, 156, 163 Cyprus v. Turkey 86

166

Index

D Decretists 3 derogating measure 87 derogation clause 84 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, (1974- 1977) 93 disarmament III, 112, 118 distinction principle of 2 Dunant,].H. 34

E engagement rules of 67 Ergi v. Turkey 88 EU code on arms transfers 164 European Convention on Human Rights and armed conflicts 84

F First Review Conference of the Conventional Weapons Convention II7,I23 formal wars 17

G Geneva Convention of 1929 38 genocide 144 Gentili, A. 8, 18 Greek case 85 Grotius, H. 9, 17 guerrilla warfare 62 Gulf war of 199°-91 74

H habeas corpus 88, 90 Hagenbach, P. 136 Hague Convention for the Protection of Cultural Property 128 Hague Convention IV Respecting the Laws and Customs oEWar on Land 40,137 Hague Convention X of 1907 38 Hague Rules of Air Warfare 40

Handicap International II5,II7 Holtzendorffis Handbuch 31 honour 26, 31 humanitarian assistance 38 humanitarian intervention 4 1, 42 humanity considerations of 13, 14, 15, 20, 22 principles of 17 human rights IS, 45, 54 violations of 144

I ICBL II5, 123, 126 ICC 152 ICRe, role of 152 NGOs, role of 152 ICCPR 83,1°5 general comment on article 4 81 ICRC 34,124,127, 15 6 ICTR 146, 157, 160 ICTY 147,149, 157, 160 Idi Amin Dada 141 ILO 133 implementation of the treaty rilles applicable in noninternational armed conflicts 162 individual accountability 139 individual criminal responsibility 149, 155 individual culpability 140 informal wars 17 insurgents 12,19,21,58,63 internal disturbances 55,56, 82 internal tensions 55, 82 internal violence 54 International Criminal Court 128 international criminal responsibility 151 international jurisdiction 39 international law communist theory of 43 International Military Tribunal ofNuremberg 151 international wars xv, 1, 22, 102 Iran child soldiers in 74 Ireland v. United Kingdom 85 Islamic law 72, 136 ius in bello 41

Index ius in bello interno

enforcement of 137 ius publicum europaeum 14

J jihad 73,74 jus ad bellum I jus ad bellum internum 7 j us in bello I, 48 jus in bello interno 8, 16 just cause 1,4,15,20 justi hastes 5, 22

167

Mill,J.S. 4 2 Milosevic, S. 145 minorities protection of 42 minority rights 43 Montesquieu, C. 26, 27 Montt, R. 70

N

Khmer Rouge 141, 145 kindness and kill campaign 66 Knox,J. 7 Koran 73

National Liberation Movements 62,100, 1°9 natural law 9, 12, 14, 15, 18, 27, 136 theory of 9,12,13 natural rights 10, II, 12, 18 neutrality law 30 NGOs 91, 127,156, 160 and the ICRC, their relationship II5 Niemoller, M. 49 non-intervention principle of 44 Northern Ireland Special Powers Act 68

L

o

just intentions 5 justus hostis 3 just war I, 2,3,5, 14, 15

K

landmines 109, IIO, II4 Landmines Protocol 107 Lauswolt document 129 Lawless case 84,86 League of Nations 41, 43 Liberation Theology Movement 75 Lieber, F. 31 Lieber Code 27,31,59, 161 Locke, J. 10, 12 Lome Peace Accords 148 London agreement 138 Luther, M. 5, 7 Lys0en Declaration 133

M Machel, G. 132 Mahabharata 24 Martens clause 40 martial law 86 MauMau 141 media 97,108,120,124,133,153,160 mental element 155 military advantage 121, 127 military necessity 15, II8, 130

Ocalan, A. 145 Omagh bomb attack in 69 Optional Protocol to the Convention on the Rights of the Child II3, 131, 162 Ottawa Convention II3,162

p Philocles 135 Pictet, J. 53 Pinochet, A. 145 piracy 137 Pol Pot 141 principle of distinction 40 prisoners of war 33,38, 74 private wars 17 Progressive Evangelical Movement 76 proportionality principle of I, 68, 87, 106 Protocol II Additional to the Geneva Conventions of 1949 xvii, 61, 93, 99, 131, 161 ICRC, role of 99 violations of 142

168

Index

Protocol on Blinding Laser Weapons 119 public wars 14, 17

R Real IRA 69 rebellion 1,2,4,8,13,48 rebels 2,3,4, 15,3 2 ,33,49 punishment of 136 remnants of war 127 reprisals 67 right intention I Rousseau, J.J. II

s Sary, I. 141 Second GulfWar 129 Second Hague Protocol for the Protection of Cultural Property II3, 128 Second Review Conference of the Conventional Weapons Convention 125 small-arms 164 social contract II, 12 theory of 9, 10, II, 12 Spanish civil war 3°,38,39,41,59, 60 Special Representative of the SecretaryGeneral for Children and Armed Conflict 132 Stari Most 129 starvation prohibition of ISS state immunity 44 principle of 41 state of emergency 82, 83, 86 state sovereignty 49, I02, 104, 118, 121 theory of 13, 15 Sun Tzu 24, 62, 161

T Tadic, D. 144 Tadic case IS0 terror 67 terrorism 63, 87 terrorist 67

U UNESCO 129

UN Human Rights Commission and armed conflicts 78 UN Human Rights Committee and armed conflicts 80 Universal Declaration of Human Rights 47 universal jurisdiction 137, 144, 163 UN register of conventional weapons transfers 164

v Valsella Meccanotecnica 117 Vattel, E. 14, 20, 27, 136, 161 Vietnam War 108, 142 Vitoria, F. IS

w war crimes 144,148,149,155 Williams, J. 124

y Yugoslav war 149

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