Humanitarian intervention, a long-standing issue in international legal writing and in state practice, has become a major focus of international legal thinking and military action. Since the early 1990s, there have been new and unexpected elements in the practice of intervention, in its authorization, and in debates about it. Action by outside military forces in several territories — northern Iraq, Somalia, Haiti and Kosovo — has provoked questions about whether there is a right of humanitarian intervention. In addition, the debate on the subject has been spurred by the strong sense that there were crises (most notably, the genocide in Rwanda in 1994) in which the international community should have intervened promptly but failed to do so.

The North Atlantic Treaty Organization (NATO) member states conducted a bombing campaign, referred to as Operation Allied Force, against the Federal Republic of Yugoslavia (FRY) from 24 March to 9 June 1999. The conduct of the bombing campaign has been subjected to a degree of outside scrutiny, particular by Human Rights Watch, Amnesty International, and the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia (OTP ICTY). This outside scrutiny process is not unprecedented. In particular, following the Gulf Conflict of 1990–91, Human Rights Watch produced a study entitled ‘Needless Deaths in the Gulf War’ and Greenpeace produced ‘On Impact: Modern Warfare and the Environment, A Case Study of the Gulf War.’ In addition, the United States Department of Defence (USDOD), which was not an outside scrutineer, produced a Report to Congress on the Conduct of the Persian Gulf War which included an Appendix O on ‘The Role of the Law of War.’

From 24 March until 9 June 1999, NATO forces, or more precisely, the forces of 13 of the 19 member states of the Alliance, set at the service of the latter, attacked the Federal Republic of Yugoslavia (FRY) in order to force its Government to accept a solution to the dispute over Kosovo.

The law of war historically paid scant attention to the protection of the environment. Its main focus was to regulate hostilities so as protect combatants from unnecessary injury. Since World War II, it has turned to the protection of the civilian population and individual civilians. It does not follow that the environment did not receive any protection at all. In as much as international humanitarian law places constraints on the use of means and methods of warfare, the environment was indirectly protected. Thus, the provisions of the Hague or the Geneva Conventions, through the protection of civilian property and objects, offer indirect protection of the environment. Similarly, the banning of weapons of mass destruction, such as biological and chemical weapons, or the restraints on activities related to nuclear warfare, such as the testing of nuclear weapons, also ultimately limit potential damage to the environment caused by armed conflicts.

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.

Milestones, particularly those as special as the twin-birth of a new century and millenium, lend themselves to rhapsody and the urge to say something positive and forward-looking. The Yearbook is not merely succumbing to this tendency, however, when it observes that, in some important respects, 2000 proved itself an auspicious opening. There was a flurry of activity among states to implement international humanitarian law (IHL), most of it a consequence of states ratifying the several humanitarian law treaties that were concluded in the late-Nineties.

On 25 May 2000, the United Nations General Assembly, adopted, without a vote, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (‘the Optional Protocol’). The adoption of the Optional Protocol was the culmination of a long process, extending over some ten years and originating in the dissatisfaction felt by a number of states and NGOs at the level of protection afforded to children by the 1989 Convention on the Rights of the Child (‘the CRC’). The Optional Protocol marks a significant step towards the prohibition of the recruitment of children into armed forces and groups and their participation in hostilities. However, its contents were the result of a compromise that left many dissatisfied, and questions remain about the likely efficacy of the Optional Protocol in ending the phenomenon of child soldiers. Critics see the Optional Protocol as the product of a dialogue between developed states, western-based NGOs and the United Nations' bureaucracy, who prefer standard-setting to tackling the root causes of the use of child soldiers.

Paraphrasing Pope Paul VI, Professor Rubens Ricupero, Secretary-General of the United Nations Conference on Trade and Development (UNCTAD), stated at the closing meeting of the second symposium of the francophone world in Geneva (27–28 October 1999) that ‘peace is development's new name’. Explaining this statement, Professor Ricupero said that peace and development are linked and interdependent, but that in this dynamic relationship, priority may be given for a time to one or the other, depending on the circumstances.

From time immemorial, human beings have communicated using signs of one kind or another, among them gestures and graphic images. Knowledge of these different forms of communication gradually spread, and they became part of the common heritage of peoples and of humanity as a whole. The respect inspired by signs and symbols stems from the fact that they perform vital functions, such as channeling knowledge, helping survival and protecting individuals and their communities.

On 30 June 2000, the Preparatory Commission for the International Criminal Court (ICC) adopted by consensus the draft Elements of Crimes for the crimes of genocide, crimes against humanity and war crimes, as defined in Articles 6, 7 and 8 of the Rome Statute of the International Criminal Court (the Statute). Herewith, the Preparatory Commission fulfilled its mandate to elaborate such elements in accordance with the time-limit set out in resolution F of the Final Act, adopted by the Rome Conference on 17 July 1988.

On 30 June 2000, the Preparatory Commission for the International Criminal Court approved by consensus the Draft Rules of Procedure and Evidence (hereinafter ‘the Rules’). Their adoption followed months of extensive negotiations during which delegations struggled to supplement the Rome Statute of the International Criminal Court (hereinafter, ICC or the Court) while fulfilling the — sometimes somewhat contradictory — objectives of safeguarding the integrity of the Statute and ‘enhancing the effectiveness and acceptance of the Court’.

Canada has been very much at the centre of the establishment of the International Criminal Court (ICC) since the momentum shifted in late-1994 from the International Law Commission (ILC) to more broadly representative bodies established by the General Assembly. It was Canada that chaired the ‘like-minded’, a group of states active during the several sessions of the Preparatory Committee and during the Diplomatic Conference in Rome from 15 June to 17 July 1998. The ‘like-minded’ were committed to invigorating the ILC's draft statute by enhancing the independence of the Prosecutor and trimming the sails of the Security Council. At Rome, Canadian diplomat Philippe Kirsch was elected chair of the Committee of the Whole, and he directed the intense negotiations throughout the five-week session. Kirsch crafted the final package of compromises that was submitted to the Conference at its close, on the morning of 17 July, and that succeeded in rallying the vast majority of delegations when put to a vote later that day. Since then, Kirsch and his team have presided over the ongoing work of the Preparatory Commission.

‘As far as the question of treatment of detainees is concerned, the conduct of INTERFET has been exemplary. The delegation met with detainees in conditions in which it could be confident that the detainees would have no fear of speaking frankly of any complaints as to their treatment. There were none. ICRC, which has full access, confirmed that it too had received no complaints from any of the detainees. The tone was set by the Force Commander who, especially in the beginning, established the pattern by personally visiting the detention area. The establishment of the detention-management team also acts as a safeguard against abuse.’

While it is clear that international treaties become part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. In Nulyarimma v. Thompson, members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia has not implemented the Convention on the Prevention and Punishment of the Crime of Genocide by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.

Currently, no judicial or quasi-judicial mechanisms exist with the explicit competence to consider complaints of individuals claiming to be victims of violations of international humanitarian law. The International Committee of the Red Cross (ICRC) cannot fulfil this role as it has neither the means, the purpose nor the mandate to make enforceable judicial determinations with regard to claims of individuals alleging to be victims of such violations. Instead, it operates mainly through confidential discussions with governments. Likewise, criminal prosecutions of individual perpetrators before national or international courts, while contributing significantly to improving the implementation of humanitarian law, cannot and should not be the only answer to violations of the law. For one thing, the future International Criminal Court (ICC) will only consider the most serious violations of humanitarian law, leaving numerous other violations uninvestigated. Moreover, criminal prosecutions are concerned with individuals rather than parties to the conflict. The acts that are labelled as international crimes, however, find their basis in the collectivity. Crimes are unlikely to be prevented nor will compliance with their prohibition be significantly improved through criminal prosecution of individuals alone. Similarly, while the ICC may, either upon request or on its own motion, afford reparations to victims of war crimes, these are reparations afforded within the individual responsibility framework of the ICC. The Court may make an order directly against a convicted person rather than against a state or entity.