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International humanitarian law in the twenty-first century1

Published online by Cambridge University Press:  17 February 2009

Yves Sandoz
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Extract

No one would consider constructing a building without first checking whether its foundations are sound. It is no different with international humanitarian law.

It is useful to examine the difficulties and even failures of international humanitarian law encountered in practice. But before beginning work on a renewal or development of the law, one must be sure the undertaking can be withstood by the foundations and that it will not call into question the very principles on which the law is founded. Any examination of international humanitarian law will have to be carried out in a very open-minded manner — one that rules out nothing, not even the possibility of scrapping the law entirely and constructing a new edifice on different foundations, if one were convinced that it was not possible to incorporate the changes needed into the law as it stands. To carry out such an examination, it is essential to analyse not only what works well and what works badly but also the underlying reasons for humanitarian law's successes and failures.

To sketch out the way forward, I will begin by recalling the pillars on which international humanitarian law stands. I will then look at various shortcomings in the law and consider from whence they arise, whether they justify its amendment, and whether any such amendment is possible without undermining the law's foundations. I will conclude by setting out what solutions may be found in humanitarian law itself, the limits of that law and the consequences that must be recognised in terms of international law and its institutions.

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Articles
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Yearbook of International Humanitarian Law , Volume 6 , December 2003 , pp. 3 - 40
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2003

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References

3. Military necessity is a core element in the writings of thinkers as Grotius, Vattel and Rousseau, which are among the precursors of international humanitarian law.

4. Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, 24 April 1863, Art. 5(2), in Schindler, D. and Toman, J., The Laws of Armed conflicts, A Collection of Conventions, Resolutions and Other Documents (Dordrecht, Martinus Nijhoff Publishers 1988) p. 5Google Scholar.

5. Ibid., Rule 17, p. 6.

6. Ibid., Rule 16, p. 6.

7. Ibid., Rule 148, p. 21.

8. This compromise is formulated in Art. 44 of Protocol I Additional to the 1949 Geneva Conventions of 8 June 1977.

9. See infra 3.4.1.

10. Introduced in the Geneva Conventions of 1949 (Arts. 23, 59 et seq.) and developed by the Additional Protocols of 1977 (Protocol I, Arts. 68 et seq. and Protocol II, Art. 18).

11. See also infra 3.1.1.

12. The text of these Conventions with this preamble is reproduced in Roberts, A. and Guelff, R., eds., Documents of the Laws of War, 3rd edn. (Oxford, Oxford University Press 2000) p. 69Google Scholar.

13. Art. 51(5)(b) and 57(2)(a)(iii) of Additional Protocol I of 1977.

14. See also infra 4.2.2.2.

15. See Art. 1(4) of Additional Protocol I of 1977.

16. See infra 4.2.1.4.

17. See infra 3.2.1, 3.2.2 and 4.2.1.4.

18. One may nevertheless hope that the important study undertaken by the ICRC on customary international humanitarian law, soon to be published, will bring more clarity on the matter. On this study, see Henckaerts, J.-M., ‘Study on customary rules of international humanitarian law: purpose, coverage and methodology’, 81 IRRC (1999) pp. 660 et seqGoogle Scholar.

19. See Pictet, J.S., Commentary of the Geneva Convention of 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, ICRC 1956) pp. 28 et seqGoogle Scholar. (hereafter, Commentary GC IV).

20. The Report of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts, of which the General Assembly of the United Nations has taken note in its resolution of 12 December 2001, UN Doc. A/RES/56/83 (2002), is now considered the standard reference in this domain.

21. On the present trend concerning the violation of the obligation of due diligence, see, inter alia, Sassoli, M., ‘La guerre contre le terrorisme, le droit international humanitaire et le statut de prisonnier de guerre’, 39 Canadian YIL (2001) pp. 211 et seqGoogle Scholar.

22. See, inter alia, Sandoz, Y., ‘Lutte contre le terrosrisme et droit international: risques et opportunités’, 3 RSDIE (2002) pp. 319 at 336Google Scholar.

23. Art. 3 common to the four Geneva Conventions of 12 August 1949.

24. Art. 2(2) of Additional Protocol II of 1977.

25. See ibid.

26. Ibid., Art. 1(1).

27. See Sandoz, Y. et al. , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) p. 1348, para. 4447Google Scholar (hereafter, Commentary AP I and II).

28. Art. 43(1) of Additional Protocol I of 1977.

29. See infra 4.2.1.4

30. See in particular David, E., Principes de droit des conflits armés (Bruxelles, Bruylant 1994) pp. 125 et seqGoogle Scholar. and Schindler, D., ‘The different types of armed conflicts according to the Geneva Conventions and Protocols’, 163 Recueil des Cours (1979) pp. 117 et seqGoogle Scholar.

31. The question of private security companies and their place in international law needs a new examination. See, inter alia, Singer, P.W., ‘War, profits and the vacuum of law: private military firms and international law’, 42 Columbia JTL (2004) pp. 522 et seqGoogle Scholar.; Zarate, J.C., ‘The emergence of a new dog of war: private international security companies, international law and the new world disorder’, 34 Stanford JIL (1998) pp. 75 et seq.Google Scholar; and Cillers, J. and Mason, P., eds, Peace, Profit or Plunder: the Privatisation of Security in War-torn African Societies (Halfway House, Institute for Security Studies 1999)Google Scholar. See also the report of Enrique Bemales Ballesteros, Special Rapporteur of the Commission on Human Rights, on the effects of the use of mercenaries on the enjoyment of human rights and particularly the right of peoples to self-determination, UN Doc. E/CN.4/1999/11, 13 January 1999.

32. See infra 4.2.1.5

33. Section III, Arts. 42 et seq. of the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention Respecting the Laws and Customs of War on Land of 1899, and its revised version of 1907. See supra n. 10, pp. 80 et seq.

34. The Fourth Geneva Convention of 1949, in particular section III of Part II.

35. See in particular the commentary on Art. 47 of the Fourth Geneva Convention in Commentary GC IV, supra n. 19, pp. 273 et seq.

36. See also supra 2.3.

37. These obligations are confirmed and specified in Art. 47 of Additional Protocol I of 1977.

38. See in particular Commentary AP I and II, supra n. 27, p. 636, para. 2025

39. See in particular Wall, A., ed., Legal and Ethical Lessons of NATO's Kosovo Campaign (Newport, RI, United States Naval College 2002)Google Scholar.

40. See infra 4.2.3.3.

41. For a detailed description of this phenomenon, see Baud, J., La guerre asymétrique ou la défaite du vainqueur (Paris, Edition du Rocher 2003)Google Scholar.

42. This is probably one of the main reasons why the 1919 Treaty of Versailles recognises the prohibition of these weapons in its Art. 171.

43. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925. See supra n. 12, pp. 155 et seq.

44. Arts. 51(6), 53(c), 54(4), 55(2) and 56(4).

45. Arts. VII et seq. Paris Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 1993.

46. For this reason, we welcome the support given by the 28th International Red Cross and Red Crescent Conference to the initiatives taken by the ICRC in order to ‘prevent the misuse of biotechnology for hostile purposes’, in particular by encouraging States Parties to the Biological Convention of 1972 ‘to continue their efforts … to reduce the threat posed by biological weapons’ and all states to become parties to the relevant treaties and to ‘integrate relevant ethical and legal norms into medical and scientific education’: see final goal 2.4 and the proposed actions in the Agenda for Humanitarian Action adopted by the Conference, in the booklet published by the ICRC and the International Federation of the Red Cross and Red Crescent Societies containing the Declaration, the Agenda for Humanitarian Action and the Resolutions adopted by the Conference (Geneva, ICRC 2004) p. 19.

47. See supra 4.2.2.2.

48. See, inter alia, Sassoli, supra n. 21, pp. 211 et seq.; Condorelli, L., ‘Les attentats du 11 septembre et leurs suites: où va le droit international?’ 105 RGDIP (2001) pp. 829 et seq.Google Scholar; Cherif Bassiouni, M., ‘Legal control of international terrorism: a policy-oriented assessment’, 43 Harvard ILJ (2002) pp. 83–103Google Scholar; Sandoz, supra n. 22, p. 319; and ‘L'applicabilityé du droit international humanitaire aux actions terroristes’, in Flauss, J.-F., ed., Les nouvelles frontières du droit international humanitaire (Bruxelles, Bruylant 2003) p. 41Google Scholar.

49. See the report presented by the ICRC at the 28th International Conference of the Red Cross and Red Crescent, December 2003, titled ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’. In Annex 1 to this report is a synthesis of the report on the direct participation in hostilities under international humanitarian law established on the basis of an experts’ meeting organised by the ICRC jointly with the T.M.C. Asser Institute in June 2003. See also Sassoli, M., ‘“Unlawful combatants”: the law and whether it needs to be revised’, 79 Proc. ASIL (2003) p. 196Google Scholar; and Sassoli, supra n. 21.

50. Sandoz, Y., ‘Le Comité international de la Croix-Rouge gardien du droit international humanitaire’, 43 Jugoslovenska Revija za Medunarodno Pravo (1996) pp. 357 at 382Google Scholar.

51. See supra 2.3.

52. Restrictive views on this principle had already been expressed in various interpretative declarations on Art. 57 of Additional Protocol I of 1977, made at the signature of this instrument. See supra n. 27, p. 685, para. 2217.

53. See in particular Parks, W. Hays, ‘Air war and the law of war’, 32 Air Force LR (1990) p. 173Google Scholar and J. Murphy, ‘Some legal (and a few ethical) dimensions of the collateral damage resulting from NATO's Kosovo campaign’, in Wall, supra n. 39, p. 227.

54. As mentioned in the Commentary on AP I and II published by the ICRC, this rule ‘seems a reasonable compromise between conflicting interests and a praiseworthy attempt to impose some restrictions in the domain where arbitrary behaviour has existed too often’. See supra n. 27, p. 685, para. 2219.

55. See Art. 85(3)(a) and (b) of Additional Protocol I of 1977.

56. See Art. 8(2)b)(i) and (iv) of the Statute of the International Criminal Court.

57. See in particular Dörmann, K., Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge, Cambridge University Press 2003)CrossRefGoogle Scholar.

58. They are mentioned in Art. 9 of the Statute of the International Criminal Court, according to which they ‘shall assist the Court in the interpretation and application’ of the articles mentioning the crimes covered by the Statute.

59. The decision by the Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia not to consider a complaint against NATO with respect to its military bombing of Kosovo in 1999 gives a clear illustration of this difficulty, as one of the reasons for not pursuing the complaint, according to the report issued in connection with it, was that international humanitarian law was not clear enough. See Final Report of the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (The Hague, 2000).

60. In this connection, we welcome the decision taken by the ICRC to pursue its consultations with experts aiming to clarify those provisions. See the report, supra n. 49, p. 14.

61. See also supra 3.2.3 and n. 31.

62. In the report mentioned in n. 49. See also Annex 3 to the report: Summary report on the ICRC experts' seminars (Improving compliance with international law).

63. See supra n. 18.

64. The notion of war crime was limited to international armed conflict before the creation of the International Criminal Tribunal for the former Yugoslavia. The international prosecution of grave violations of international humanitarian law committed in non-international conflict and their recognition as war crimes was then confirmed by the introduction of such violations in the Statute of the International Criminal Court (Art. 8(2)(c) and (e)).

65. See supra 4.2.1.1 and n. 58.

66. Art. 6(5) (penal prosecutions) of Additional Protocol II of 1977 reads as follows: ‘At the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflicts, whether they are interned or detained.’

67. A good discussion on this question is found in E. David, supra n. 30, p. 125.

68. See, inter alia, Thürer, D., ‘The emergence of non-governmental organizations and transnational enterprises in international law and the changing role of the state’, in Hafman, R., ed., Non-State Actors as New Subjects of International Law (Berlin, Duncker and Humblot 1999) pp. 37 at 51 et seq.Google Scholar; and Gordenker, L. and Weiss, T.G., ‘Pluralizing global governance: analytical approaches and dimensions’, in Weiss, T.G and Gordenker, L., eds., NGOs, the UN and Global Governance (Boulder, Lynne Rienner 1996) p. 24Google Scholar.

69. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Rep. (1996) para. 105.

70. Additional Protocol I of 1977 prohibits the use of ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’. See Arts. 35(3) and 55.

71. Clarification of the applicability in time of war of international norms protecting the natural environment was one of the recommendations mentioned in the report of the UN Secretary-General titled ‘Protection of the environment in times of armed conflict’, issued in 1992 on the basis of a meeting of experts organised by the ICRC. See UN Doc. A/RES/47/37, 25 November 2003.

72. A detailed analysis of the reasons which might justify the use of force and of the different situations where self-defence might be invoked is found, adopting a more liberal position than the one defended in the present article, in Franck, T.M., Recourse to Force, State Actions Against Threats and Armed Attacks (Cambridge, Cambridge University Press 2002)CrossRefGoogle Scholar.

73. See supra 3.2.1.

74. See Huber, M., ‘Sentence arbitrale dans l'affaire des biens britanniques au Maroc espagnol [Arbitral sentence in the case of British property in the Spanish Zone of Maroco] of 1.10.1924’, 2 Recueil des sentences arbitrales des Nations Unies (1949) p. 641Google Scholar.

75. See the 1999 UN Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, in Roberts and Guelff, supra n. 12, p. 721.

76. These rules are found in UN Doc. E/CN.4/Sub.2/1991/55, 12 August 1991.

77. On this type of conflict, see supra 4.2.1.7.

78. See the analysis in Kolb, R. et al. , eds., The Coordination of the Rules of International Humanitarian Law and Human Rights Law Applicable to International Forces and Transitional Civil Administrations (Geneva, University Centre of International Humanitarian Law, forthcoming)Google Scholar.