“So-called professionalism is not enough. Something more is necessary. For the sake of simplicity, it might be called spirit. Or feeling. Or conscience.”
- Vaclav Havel707 The reader may recall Sir Hersch Lauterpacht’s famous observation that international law was on the fringe of the law, and that humanitarian law was on the fringe of international law. It set us off on a journey to find out whether the statement is still valid.
We began by trying to draw a portrait of international humanitarian law in all its distinctiveness. We explored its rules of constraint and its human potential, and we went on to ponder the question of religion. We found that the ideals of humanity that underlay the major religions in a variety of forms were also inherent in humanitarian law. This led us to some general conclusions regarding the basic values on which humanitarian law rests. Then we discussed the changing character of war in an age of globalization and reflected on the implications for humanitarian law. We also discussed the emerging global network of actors in the area of humanitarian law. In this concluding chapter, I shall try to sketch a “system of systems of rules”: I shall try to situate international humanitarian law within an overarching structure or system of international law. I shall then consider how these systems affect one another.
“Even wars have limits”: this was the motto chosen by the International Committee of the Red Cross for the celebration of the 50th anniversary of the four Geneva Conventions. In those fifty years, the system of humanitarian law has grown more complex and coherent. But Lauterpacht’s observation still rings true to many legal experts. They continue to regard humanitarian law as being on the margins of the law, lacking much of the clarity and efficacy that distinguish legal rules from rules of other kinds.
Having brought up the subject of changes in the law, what shall we say about war? Has not warfare also changed fundamentally in the shadow of the law? We will have to ask another question as well: What are the fundamental challenges in the situation in which we find ourselves, and how can we adequately analyse them? Since war – the province of humanitarian law – has changed so much, how can we be confident that rules established in the nineteenth and twentieth centuries will continue to be effective or pertinent in the twenty-first? Does the law still build thick walls protecting people from violence? What are these walls? Are they still effective or have they been breached? Do they need repairs? Can they be repaired? Is a new design needed?708 I shall conclude this essay by drawing the attention of the readers to the potential threats posed by advances in technology and the challenges they present for the idea and the capacities of the regulatory process.
We shall deal with the following topics in this chapter: warfare in the shadow of the law, the state of humanitarian law, and the strength of the “walls of the law.” We shall also discuss the political and moral imperatives in an age of technological advances whose destructive potential is alarming. Considering the vastness of the subject, nobody will certainly expect all these questions to be answered here and now. But it seems to me that it is often more important, in academic life as elsewhere, to ask the right, albeit open-ended, questions than to give – prematurely – definitive answers.
Warfare in the shadow of the law
The law concerns itself ever more closely with war. But does this necessarily mean that we are about to enter a 'brave new world' in which the imperatives of international law will succeed in taming the “dogs of war”?709 Is it wilful naiveté to believe that the law will create a better world? Are we deluding ourselves by ignoring a dark and hopeless reality?
Let me try to answer that question by leaving the realm of law. Sigmund Freud suggested that there was a never-ending struggle between two basic drives in all human beings: the drive to destroy, thanatos, and the drive to preserve and reproduce life, eros. Are we still ruled by this dichotomy, or might it be that the cultural processes of the recent past have caused some sort of psychological metamorphosis on a vast scale? Have we changed so much that the very idea of war now evokes such outrage as to make war itself wholly unacceptable? Do we feel a basic emotional refusal – a constitutional pathological intolerance – of war?710 Or is the appetite for brutality and destruction an immutable aspect of human nature?711 What is obvious – and different from earlier periods in history – is the modern trend in international politics to arrange the aims of war in well-defined categories, and to express those aims in legal terms. The military campaign in Afghanistan was considered to be legal because it was based on the right to self-defence laid down in the UN Charter. The 2003 war against Iraq, on the other hand, appeared to be in violation of international law since it lacked the approval of the Security Council. And ever more frequently, acts of war are judged by the standards of humanitarian law: by NGOs, international organizations and States. Public opinion adapts to and repeats criticisms made in those terms. For example, on 27 February 2007 charges were brought before the International Criminal Court (ICC) against a member of the Sudanese government and a militia commander for war crimes and crimes against humanity712. It was given wide coverage by the media. This was also the case when the Prosecutor of the ICC took steps to have the President of Sudan indicted by the Court713 and when Radovan Karadzic was extradited to the International Criminal Tribunal for the former Yugoslavia714.
As the importance attached to humanitarian law grows, so, too, does the awareness that education in this body of law is essential in the political, administrative and even the economic spheres. This certainly applies to decision-makers in government or in international organizations. Above all, it is now required of all those involved in armed conflict that they have knowledge of what is allowed and what is not. A soldier must know what he may, and may not, do when no superior is there to give him orders. And he cannot hide behind the orders of a superior if those orders violate international humanitarian law.
However, one does not have to look very hard to find evidence of the sad state of the international community's peace-promoting and humanitarian endeavours. It is true that there are more peace-keeping operations than ever before. On the whole, however, what is striking is the frequency with which the international community ducks its responsibility for maintaining peace and takes refuge in humanitarian operations (thereby making actual humanitarian work more difficult). Most disturbing of all is the international community’s foot-dragging in performing the task of ensuring international security715. The international community did not manage to save the Bosnian Muslim men in Srebrenica from being massacred716, or to bring order to Somalia, or to preserve civilians in Darfur from being killed, tortured, raped, driven from their homes or having their property destroyed717. Of course, these failures are not mainly the fault of organizations – the United Nations, the European Union or other entities. Institutions and organizations cannot act if States lack the political will to support them. The advances in humanitarian law itself and humanitarian action on the ground are to be welcomed, but any euphoria occasioned by that is checked by the many instances of half-hearted or non-existent implementation of the law.
What is especially important in our present context is that the conduct of war has changed. Battles such as Solferino, in which two armies faced each other on a field, no longer take place. The terrible confrontations between mechanized armies that characterized the two World Wars are also probably a thing of the past. Today, nationalist insurgencies and guerrilla wars are far more frequent than wars between States. More often than not, wars now take the form of conflicts between rebels and governments – such as the conflict in Sudan – or of clashes among gangs, clans and warlords in failed States, as has been the case in Somalia, Sierra Leone and Liberia. In addition, instead of uniformed soldiers in regular armed forces, we see, increasingly, irregular combatants and other fighters under the command of warlords. At the same time, the traditional "citizen soldiers" of State armies are being replaced by private armies: tens of thousands of personnel from private security firms are deployed in Iraq alone718. One may well ask whether the sort of warfare for which international humanitarian law was originally designed still exists.
In conclusion: the nature of war has changed over time719. Neither the epic contests of Homeric heroes nor massive confrontations between armies is representative of war today, but armed conflict within the boundaries of one country or a hybrid of internal and international armed conflict is. Wars are very seldom conducted on clearly defined battlefields; they take place in towns and cities, streets, squares and fields, and in areas stretching over huge distances. Increasingly, military operations are being carried out by electronic means and at a distance from those conducting them. The new patterns of warfare have been described by one expert as "wars between people"720; but international humanitarian law was developed to deal with wars between soldiers. “Wars between people” are characterized by attacks on the civilian population and by extreme brutality. Because of that, laws for limiting the use of force have to be further developed, on the international or the domestic plane, and in the form of legally binding rules or general codes of conduct721. Whatever form they take, such rules are a necessity in any civilization based on the rule of law.
Fundamental challenges: Assessing the state of international humanitarian law
To assess the effectiveness of a body of law such as humanitarian law, we must use four criteria. One: Are its rules still pertinent and adequate? Do they meet the actual needs of society at present? The main issue before the international community in recent years has been the efficacy of humanitarian law in the struggle against terrorism or - as the United States, after the events of 11 September 2001, refered to until recently as - "war on terror."722Two: Is the system inherently comprehensive in terms of what Sir Hersch Lauterpacht called the "reign of law," i.e. the principle that no one – no matter how powerful – is above the law? To put it more specifically, does international humanitarian law permit a "legal vacuum," as the US government claimed in connection with the detention camp in Guantánamo Bay? Three: Are the issues in question adequately dealt with by treaty law? If not, is there a comprehensive body of customary international law or general principles of law to fill the gaps left by traditional treaty law codifications? Four: Are the rules effective in practice, and are there procedures in place to ensure their implementation? Is the system riddled with serious and inherent weaknesses when it comes to implementation?723
A. International humanitarian law and the "war on terror"
In response to the attacks of 11 September 2001, George W. Bush, the president of the United States at the time declared "war" on international terrorism. He was using the word "war" not figuratively (as in the "war on poverty” or the "war on drugs”), but literally and with all the legal implications. On closer examination, however, one sees that a distinction must be drawn between anti-terrorism measures that are part of armed conflict, whether international or non-international, and straightforward anti-crime measures. In terms of armed conflict, i.e. with regard to the military action taken by the United States and its coalition partners in Afghanistan between 2001 and 2002, humanitarian law proved relevant and adequate. No one could seriously argue that the law shouldn’t be fully applicable to such quite traditional forms of war, even if they are promoted as anti-terrorism measures. But to apply the rules of humanitarian law to every measure linked to the worldwide anti-terrorism effort would run counter to its substance, purpose and spirit. Humanitarian law permits intrusions into people's lives and abridgement of their freedom that can be justified only in the extreme circumstances of war. And – a fact apparently not understood in Washington then – it stipulates rights and obligations equally, for all warring parties. The various panel sessions of experts that took place after the 11 September attacks revealed a broad consensus: even after the emergence of modern transnational terrorism, humanitarian law had lost none of its relevance or effectiveness and no fundamental reform of the law was required.
B. Are there gaps in the protection afforded by international law?
The Guantánamo Bay detention camp has hundreds of inmates – combatants captured in Afghanistan and alleged common criminals – who have been deprived of all their rights under humanitarian law, international human rights law and the US Constitution. The facility represented an attempt to create a legal no-man's-land, and its existence raised this question: Is international humanitarian law incomplete? To take one particular instance: the administration of President Bush claimed the existence of a category of "unlawful (enemy) combatants" that consisted of persons who carried out hostile acts that were not permitted by humanitarian law724. The US policy questioned the applicability of humanitarian law in this instance: it implied that unlawful combatants were not covered by any of the four Geneva Conventions, even with regard to the rights of captured persons – as laid down in Article 5 of the Third Geneva Convention (on protecting prisoners of war) – to have a competent, independent and impartial court determine their status (that is, whether they were entitled to be regarded as prisoners of war)725. It is interesting to note that the US Supreme Court, in the Hamdan case726, declared itself, by a decision of five to three, at least partly opposed to the stance taken by the executive branch of government. The Court did not pronounce on whether the Third Geneva Convention as a whole was applicable, but it ruled that at least a section of it – common Article 3 – applied:
“Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory `Power’ who are involved in a conflict ‘in the territory of’ a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase ‘not of an international character’ bears its literal meaning.”727
The judgment goes on to say that the military commissions in Guantanamo Bay did not meet the minimum procedural requirements of common Article 3 and were therefore inadequate for determining the legal status of inmates:
“Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.”728
Also, the Court makes explicit reference to the rule of law:
“… in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”729
A few months later, the US Congress passed the Military Commissions Act of 2006 (MCA). It codified and therewith legalized military commissions, with some adjustments, in a manner reflective of the commissions President Bush had previously created by executive order. In doing so, Congress at least partly overruled the Supreme Court’s findings in Hamdan. And although it took into account some of the Supreme Court’s findings (such as the principle that an accused cannot be excluded from his own trial), it legitimized the commission process by deciding that it satisfied the requirements of common Article 3 and by amending the Uniform Code of Military Justice (UCMJ). In addition, the MCA made it clear that no unlawful combatant may invoke the Geneva Conventions as a source of law at a military commission trial730.
This interpretation, stated openly by the US administration at the time and expressly in the MCA, is highly contestable: as several international lawyers have shown, extremely persuasively, there are no grounds for maintaining that unlawful combatants are not entitled to any protection whatsoever under international humanitarian law731. Articles 16 and 4 (2) of the International Covenant on Civil and Political Rights provide that all persons have the non-derogable human right to recognition before the law. The ICRC’s Commentary on the Fourth Geneva Convention points out that:
“[It is] a general principle which is embodied in all four Geneva Conventions of 1949 [that] every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.” 732
Thus, all detainees are either entitled to prisoner-of-war status under Geneva Convention III or have to be classified as “civilians” under Geneva Convention IV. The International Criminal Tribunal for the Former Yugoslavia reached the same conclusion in Prosecutor v. Delalic:
“It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied.”733
Those civilians who have committed terrorist acts can still be subjected to the measures set out in the Fourth Geneva Convention, e.g. interrogation and detention for the duration of the conflict, or to criminal prosecution and punishment under domestic law. But even if Geneva Conventions III and IV don’t apply, e.g., because a detainee does not fulfil the nationality criteria set out in Article 4 of these Conventions, Article 75 of Additional Protocol I provides for a minimum protection for everyone that must be respected in all circumstances734:
“1. (…) persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria (…).”
Article 45 (3) of Additional Protocol I explicitly recognizes the application of Article 75 to unlawful combatants:
“3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol (…).”
One may conclude that, in general, the cases involving the Guantánamo detainees demonstrate that international humanitarian law does provide an adequate legal basis for the protection of prisoners. But these cases are also reminders of the political and practical problems that constantly thwart implementation of the law.
However, on 21 January 2009 the White House announced that President Barack Obama had signed an executive order suspending the proceedings of the Guantánamo military commission for 120 days and that the detention facility would be shut down within the year735. Although the US government has not – for political reasons – taken this step yet, there are nevertheless clear signs pointing towards more lawful behaviour in the future. For example, the Obama administration does not use the term “war on terror” or others created by the Bush administration in relation to this issue. They have also announced plans to phase out the term “enemy combatant”. While making this announcement, the US Department of Justice said that in future, suspects would be held in accordance with the standards set by the international laws of war736.
C. Is the law incomplete?
International humanitarian law is intended to be universal. The four Geneva Conventions have become universally applicable now that all the 194 States in the world are party to them. This is not yet the case for the two Additional Protocols of 1977. Important States that are involved in acute international crises or face that possibility – the US, India, Pakistan, Iraq, Iran and Israel – are not yet bound by Additional Protocol I. States that are at present particularly afflicted by internal violence – Nepal and Myanmar – have declined to become party to Additional Protocol II. Faced with waning enthusiasm for treaty ratifications, the 26th International Conference of the Red Cross and Red Crescent, which was held in 1995, assigned to the ICRC the task of carrying out a survey of the customary rules of humanitarian law that are applicable in both international and non-international armed conflicts. In 2005, the ICRC published a two-volume work737 that explores the extent to which international humanitarian law now has the force of customary law. As the President of the ICRC, Jakob Kellenberger, put it, it is the clearest possible "photograph" of this body of law738.
The study represents a historically unique and monumental exercise in the systematic compilation of international law739. It is not yet certain whether States will recognize as customary law all the rules identified by experts. Nevertheless, it is striking that the experts found that most of the rules enshrined in treaty law have the force of customary law and are therefore binding on all States, and that these rules have also attained customary force in internal armed conflict.
It is also worth mentioning an endeavour to codify the minimum humanitarian standards that must be met in situations of internal violence, regardless of the circumstances: these standards would apply even when the threshold of non-international armed conflict has not been reached and – because a state of emergency is in force – when international human rights guarantees have, apart from an inalienable core, been suspended. Unfortunately, the private initiative to bring this about – the Turku Declaration of 1990 – has not yet been, and probably will not be, formally adopted by international institutions740.
For these reasons, humanitarian law can no longer be considered as merely an aggregation of treaty norms that States Parties once ratified, but as a growing and increasingly compact system of norms from different sources. Nevertheless, given their relative lack of effectiveness, we must face the fact that the implementation of all theoretically imposed obligations is still far from assured.
D. Weaknesses in implementation
The conclusions of the ICRC study on customary law regarding the rules of humanitarian law are impressive. But this has not preserved the law from attack: it has been sharply criticized for failing, or seeming to fail, to effect material change in the conduct of hostilities. The fact is that the implementation of humanitarian law – just as the implementation of other branches of international law – depends to a large extent on the political willingness of States, despite the fact that the four Geneva Conventions contain a monitoring mechanism for States Parties that are not directly involved. This mechanism consists of a system of Protecting Powers (which, it is true, has never been implemented) and the ICRC’s mandate (effective in practice) for the purpose of guaranteeing compliance. Nevertheless, in the matter of compliance the situation has improved. The main factor here is the growing role of the courts. The war crimes tribunals in Nuremberg and Tokyo were monumentally important in the effort to improve the effectiveness of international humanitarian law. They paved the way for the creation of the Ad hoc-Tribunals for the former Yugoslavia and for Rwanda, which were set up by the UN Security Council in 1993 and 1994 respectively. Of even greater importance – as I tried to explain in the third chapter – was the establishment of the ICC, which was based on the Rome Statute of 1998. The purpose of these institutions is to make the universal jurisdiction provided for in the four Geneva Conventions, for the prosecution and judgment of war criminals, a reality. As mentioned earlier, the International Court of Justice, too, has addressed fundamental questions of humanitarian law on several occasions741. In addition, human rights systems increasingly provide for proceedings before courts (international or regional), and for commissions to supervise the implementation of treaties. And it is also possible to base the proceedings that take place before the political organs of international organizations, or – most importantly – of States, on humanitarian law. As the UN Security Council reminded the belligerents during the Balkan conflict, "all parties are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949."742 In the future, domestic courts will doubtless also play an increasing role in enforcing implementation743.
It is, after all, the task of law to set limits. I am of the opinion that law and legal (and political) institutions can shape minds. They can erect walls to protect and to prevent. Let me offer you an alternative framework to consider.
The walls of the law
Over the course of time, human beings have gradually built up impressive State systems. Ideally, States should be governed by law and based on the principles concerning the rule of law (Rechtsstaat or Verfassungsstaat, or Etat de droit). They are expected to protect their citizens and promote their welfare. However, when State structures collapse completely, the international community is required to step in and fulfil its “responsibility to protect”744. Mankind has thus succeeded, under the law and by means of the law, to establish admirable systems of norms and public institutions. Ideally, such systems should enable people to live together in a more or less just, peaceful and orderly way.
There is one feature of State constitutional systems that is generally taken for granted; it is, in fact, the result of arduous and protracted struggles. I am referring to the substantial disarmament on the domestic level that has generally taken place: within States, the risk of armed violence has therefore been reduced. Police and national armed forces have been given, under the law, monopoly powers with regard to the possession and use of arms. This is one of the most essential achievements of a civilized society. Yet it was not always thus.
States that are consolidated to a lesser degree, and the international system as a whole, are much weaker, and sadly underdeveloped. Violence breaks out frequently and is a constantly looming threat. The use of force threatens to shake the world order, which suddenly seems no more stable than a house of cards. We seek arms control and disarmament, hoping to reduce the risk of weapons use. But the results have been discouraging. Why is it that human beings are able to live together within some States in a more or less secure environment, whereas peace within other States and between States seems to be much more fragile and elusive? Why is it that, within States, legal systems can be built on peace and justice, whereas a sort of Weltinnenpolitik (i.e. global domestic policy or politics), as was suggested by Carl Friedrich von Weizsäcker, seems to be only a remote possibility?
I believe that institutions shape and direct human behaviour. They provide “walls” that check aggressive impulses. Should it not be possible to create and strengthen, in the wider world, systems of order comparable to those that have been created within States? State systems did not emerge overnight. Time, imagination, energy, political will and good fortune were all needed. Much depends on the way we see and think. Theories and visions are important.
Given the modest achievements of the international order should we not attempt to have the existing walls in the system strengthened and to build new walls? I see three points of reference that might help us feel more optimistic about our shared system of international law: the Martens Clause, general principles of law and constitutional methods of interpreting the international legal system.
A. The Martens Clause
This clause was first proposed in 1899 by Frédéric de Martens, an eminent jurist and the Russian delegate to the Hague Peace Conferences745, and subsequently reformulated in later treaties746 of humanitarian law. Its most recent version, contained in Article 1 (2) of Additional Protocol I, states the following:
“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.”747
Professor V.S. Mani has called the Martens Clause “a masterpiece of norm-setting in international law”748. Theodor Meron, former President of the International Criminal Tribunal for the former Yugoslavia emphasized the “rhetorical and ethical strength of its language” and suggested that these qualities “perhaps best explains its continuing influence on the formation and interpretation of the law of war and international humanitarian law”749. But the Martens Clause is a very ambiguous norm750. Two questions in particular arise. First, does the Martens Clause refer to a source of norms outside treaty law and customary law? And second, what do the phrases “the principles of humanity” and “dictates of public conscience” mean?
With regard to the first question, the norms referred to are, as has been convincingly argued by most commentators, not outside the law751: they do not have a meta-legal character. Rather, they have a place within the legal system, and the Clause itself is part of the legal system. However, this does not undo the visionary impulse of the Martens Clause. As Theodor Meron has pointed out, the Clause supports and strengthens international humanitarian law. First: The Martens Clause guarantees that international customary law will still apply to States that are no longer bound by treaties of international humanitarian law. Principles of customary international law remain binding even if a State has renounced its corresponding treaty obligations. Second: Customary international law continues to apply even after the adoption of a treaty norm that is more elaborate and more precise752. Thus, customary law continues to provide a safety net of last resorts that might, so to speak, not make for a comfortable fall, but that will prevent a catastrophe. Third: In case of doubt, the Martens Clause serves as a guide for the interpretation of international humanitarian law, the rules and principles of which should be understood in conformity with the principles of humanity and the dictates of public conscience. So, the Clause serves, in addition, to avoid a non liquet. However, Meron pleads against pushing the Martens Clause “beyond reasonable limits.” “Governments,” he argues, “are not yet ready to transform broad principles of humanity and dictates of public conscience into binding law.”753 I would, however, come to a different conclusion. I do not think that the Clause intends only to restate the customary law in force. Its wording rather seems to suggest that it refers to a source outside customary and treaty law: general principles of law754. We shall consider this thesis in a moment.
With regard to the second question - what is meant by “principles of humanity”? - in the light of contemporary humanitarian law, it might be safe to assume that the Clause refers to the “elementary principles of humanity” as established by the International Court of Justice in the Corfu Channel and Nicaragua cases755 and contained in common Article 3756.
The reference to “dictates of public conscience” is more enigmatic. It sounds very modern757. In his time, Woodrow Wilson equated “public conscience” with “public opinion”. The growing influence of civil society and its networks of NGOs on international norm-setting and norm-application seems to support this position. But let us be cautious: was not fascism strongly supported by the vox populi, at least in the beginning, all over Europe and outside Europe? The same might be said of communism. More recently, acts of war in the Balkans were fuelled by ethnic hatred: it must be acknowledged that the leaders of the various factions were instrumental; nevertheless, the point stands. And in Rwanda, broadcasts by a radio station named “Mille Collines” consistently advocated genocide. Hatred inflames public opinion in wartime. Enraged leaders and their followers often do not hesitate to carry out reprisals against civilians or to take hostages. Therefore, “public conscience” may be, and very often is, a moral impulse calling for criticism, or condemnation of, abuses of power as well as for reform. It is not, however, always an enlightened, or a reliable, guide.
B. General principles of law
You may remember mention being made of the “minimum standards of humanity”. Earlier, we said that the principle of proportionality was regarded as a general principle of law. There are others: the principle of distinction, the prohibition of attacking the civilian population, the prohibition of inflicting superfluous suffering, basic principles concerning means and methods of warfare, etc. This brings us to a more general concern: the question whether general principles of law should, as such, be understood in a much broader and more basic sense than is the case today. In my opinion, it is to this kind of source of public international law that the Martens Clause refers to.
As we know, “general principles of law” were recognized in the Statute of the Permanent Court of International Justice as one of the sources of international law besides treaty and customary law758. The provision was carried over to the Statute of the International Court of Justice, which in Article 38, para. 1, lit. c refers to “the general principles of law recognized by civilized nations.”759 Thus, “general principles of law” are officially recognized as one of the three formal sources of international law. But, the official use made of this source has been rather limited760. One reason might be the normative context in which the provision was placed: Article 38 of the Statute determines and defines the rules to be applied by the International Court of Justice. The drafters of the Statute seem to have included general principles as a source in order to equip the Court with a set of principles to which it might have recourse if a dispute could not be decided on the basis of treaty or customary law. Thus, the raison d’être of lit. c probably was, first of all, to avoid a non liquet761. In its jurisprudence the Court recurred to “general principles” with caution, in order to avoid encroaching on State sovereignty762.
However, judicial settlements of disputes are, so it seems to me, not at the centre of the functioning of international law. This is true at least with regard to contemporary practice. Article 38, para. 1, lit. c should therefore not be interpreted only within the context of the ICJ’s rules of procedure, but in a broader sense. Let me mention two aspects:
First: International law has lost its traditional inter-State character and developed into a much more diversified system of rules and actors. During a period of transition, basing international law primarily on the consent of States, be it through treaties or custom, does not serve the needs of the modern international community. A legal order for a modern, globalized society must be based on a much more flexible set of general principles, whether it is for specific branches of law (such as international economic, environmental, or humanitarian law), or with regard to the system of international law as a whole.
Second: In times of transition a door should always be left open to influences stemming from general principles of justice or “natural law.” Clinging to rigid norms that have lost credibility and effectiveness might undermine the authority of the law. Is contemporary international law so hermetically sealed as to have no room at all for the approaches chosen by Hugo Grotius, Francisco de Vitoria, Francisco Suarez, Christian Wolff, Samuel Pufendorff, Emer de Vattel, Immanuel Kant and others? Are the general principles of law not worth consideration, as one way to battle stagnation and develop the law in times of transition?
When we mention influences derived from “natural law”, we are not, of course, referring to principles borrowed or deduced from theology, or to “pure” rationality. It seems to me pointless to search the skies, as it were, to give substance and shape to the general principles of law763. They seem to grow from the bottom upwards. They seem to emerge from injustices, from “colère public”, in the words of Emile Durkheim. Experiences of injustice can prevent or at least slow down recurrence of such, as Alan Dershowitz764 has convincingly demonstrated in the context of domestic law. The results of a survey of people’s views on war, carried out by the ICRC in 1999, may be of interest to us. The survey found that “there is a near-universal belief that the growing threat to the civilian population is wrong, that some things just should not be allowed in war. Indeed, the more the conflicts have degenerated into wars on civilians, the more people have reacted by reaffirming the norms, traditions, conventions and rules that seek to create a barrier between combatants and civilians.”765 It seems to me that more extensive use should be made of the general principles of law. Bert V.A. Röling, the Dutch judge on the Military Tribunal for the Far East, was of the opinion that it was up to international lawyers to discover the “natural law of the atomic age,” together with “natural law of a democratized world”766, This – Röling said – would enable us to find out the means by which natural law could be translated into positive, binding law in international relations.
To sum up: In the seventeenth and eighteenth centuries international lawyers frequently invoked the law of nature; then, from the nineteenth century onwards, certain branches of international law, such as humanitarian law, were successfully codified. These rules are still being applied in the spirit of the nineteenth century; and the approach that is used is based on pseudo-scientific positivist methods of reasoning. This is especially true for humanitarian law. However, general principles of law, which are regarded as the basis of a “civilized society,” should be given more consideration as a basis also of international humanitarian law. Common Article 3 may be considered a focal point. Its provisions were characterized by the International Court of Justice as “elementary principles of humanity.”
C. Constitutional paradigm?
Constitutionalization in international law
Finally, let us consider “constitutionalism” as a method for preconceiving humanitarian law. Constitutionalism in international law is a complex idea. Traditionally, the term ‘constitutional law or ‘constitutional system’ has had relevance only in a national context. Since the end of the Cold War, however, the concept of constitutionalism has been the subject of growing international debate767. This debate has occupied itself with one question mainly: Has international law, particularly over the last two decades, changed so profoundly that, increasingly, one can find in it elements that can be considered “constitutional” in various ways? And, a related question: Is something like a “world constitution” likely to emerge as a result? This does not mean that the “constitutionalist” school of thought is advancing the claim that the international system is built on a constitutional order comparable to that of a State; but it does mean that this school of thought tries to interpret basic principles of international law as it would the constitution of a State.
International law has indeed been profoundly altered over the last few decades. The traditional approach, based on the sovereignty of States, has, over time768, gradually given way to one based on human beings – a development that is especially evident in all the international human rights treaties after World War II, in international criminal law and in legal concepts like jus cogens. In Prosecutor v. Dusko Tadic (7 May 1997), the International Criminal Tribunal for the former Yugoslavia referred explicitly to this development769. It is no longer only the pure will and interest of the States that is decisive for the development of international law; more and more, ideas like the public weal, the common interests of the international community and the search for globally shared values of humanity determine the direction to be taken by the law. This shift in emphasis has been accompanied by the re-humanization of international law and the steady growth in importance of ethical and moral considerations in international legal debates770.
The debate about constitutionalism raises a number of questions. These questions usually fall into three categories: 1. Is an international system of executive, legislative and judiciary, i.e. a separation of powers in international law emerging (question of “constitutional” structure and organization)?. 2. Is a substantial, binding order of universal values being formed (question of “constitutional” catalogue of substantial values)?. 3. Are there certain rules of international law that take precedence over others and can be compared to a constitution on the national level (question of “constitutional” hierarchy)?771.
In this sense, there are, of course, quasi-constitutional elements that are discernible within the international legal order, which, admittedly, is only a fragmented system consisting of various institutions that carry out executive, legislative or judiciary functions: for example, the United Nations or the International Court of Justice. This system, in which powers and functions are divided between international and the national spheres and institutions bear some similarity to the checks and balances of a constitutional system.772 It offers the common goals of the international community; the human rights standards which remind us of the bills of rights of national constitutions; and an emerging level of “higher law” like jus cogens and provisions with erga omnes effect.
However, one should be cautious when using the term “constitution” in the context of international law, particularly because the structural and organizational elements on the international level can, even now, not be compared to a national constitutional system. It would be better to talk about a “constitutional method” of construction or interpretation in debates about international law. Perhaps the terms “constitutional core” or “elementary principles inherent to/behind the law” would be more appropriate773. What I have in mind is an approach familiar within the British legal tradition: even though the concept of a formal constitution is alien to British law, there are clear and time-honoured notions of constitutional principles and “rules of law” inherent in the British legal tradition.
Constitutionalism as a method of construction
In this sense, constitutionalism means more than purely technical analysis of the elements of international law in the light of national constitutional mechanisms. In the current debate in international law theory, the constitutional method often serves as a motor for “second order-thinking” beyond ordinary law: it seeks the elementary principles above and within the law, extends the limits, geographical and temporal, of debate, and admits ethical and moral considerations to the resolution of issues of international law774. It appears to be a method that changes the inner dynamic of law without necessarily changing its wording or its structure. It enables us to see law in a different light while still recognizing and reinforcing it as law. It also enables us to see international law as a complex field within a broad context of rules and principles, legal, political, social, economic and ethical, written and unwritten.
I will give two examples that may be illuminating. A few years ago, I discovered, in a library in Geneva, a book by the Italian legal philosopher Cesare Beccaria: its title was Dei delitti e delle pene (Of crime and punishment in English, and in French, Des délits et des peines) and it had been published in 1764. Beccaria had succeeded, in his time, in revolutionizing the law of criminal procedure, which, in the ancien régime, had been an instrument of arbitrary power for monarchs and their bureaucracies. Beccaria had read Montesquieu, who wrote: “C’est de la bonté des lois criminelles que dépend principalement la liberté du citoyen.” Beccaria inverted Montesquieu’s perspective: for him, the quality of criminal legislation depended on the freedom of the citizen and the quality of political institutions. Laws, Beccaria said, are the expression of the founding social contract, which had human liberty at its core. He caused a shift in emphasis: from studying the law of criminal procedure in isolation to studying the bases of the legal order as a whole; as a result, the law of criminal procedure came to be regarded as just one of the various aspects of the law under the roof of the “contrat social” or – as we would say today – the common constitution. Robert Badinter, the French minister of justice who abolished the death penalty in France, has said: “Cette pensée est d’abord une pédagogie de la liberté appliquée dans un domaine jusque-là ignoré d’elle.” This educational aspect mentioned by Badinter seems to me to be important: not at all a lofty set of abstract ideas, it can be internalized, embedded in the minds of officials and citizens, and take effect without conscious decision-making.
My second example concerns Nelson Mandela. In his beautiful autobiography, Long Walk to Freedom, Mandela, who had been sentenced by the apartheid regime in South Africa to 27 years in prison, wrote: “In prison, my anger towards whites decreased, but my hatred for the system grew. I wanted South Africa to see that I loved even my enemies while I hated the system that turned us against one another.”775 Is not this statement, too, a proof of the transforming power of constitutional thinking? Was not Mandela’s vision of a just constitutional order realized, years later, in the new, formal South African constitution that put an end to racial discrimination?
Constitutionalism in humanitarian law
International humanitarian law is a well-established field of international law that is based on fundamental principles of humanity and on the desirability of departing from the exigencies of States’ will. Traditionally, the purpose of humanitarian law has always been to ensure humane treatment for all persons affected by war: because of this, humanitarian law has, from the very beginning, been ruled by considerations other than the interests of States776. It should not be surprising that several distinct constitutional approaches can be found in this body of law, whether it is in responding to the three questions mentioned above or in using constitutionalism to extend traditional legal thinking. Examples of both kinds of constitutional approach are given below.
In terms of constitutional structure and organization, the executive functions of international institutions in humanitarian law are, as is generally the case in international law, not as developed as the legislative and judiciary functions, especially the latter. The States themselves have the primary responsibility for implementing humanitarian law; there is a partial statement to this effect in Articles 47 and 49 of the First Geneva Convention. The UN Security Council, the ICRC and several NGOs also play an important role in implementing humanitarian law777. With regard to legislative functions, it is again the States that play the most important role, by drafting, signing and ratifying international conventions and treaties of international humanitarian law. A lot of other actors are also involved in this process of elaborating treaties, particularly various United Nations agencies and the ICRC who participate in drafting the texts of such international treaties778. Where constitutionalism in humanitarian law is concerned, it is the judiciary function that stands out: the International Criminal Court (ICC) and various special tribunals punish crimes on an international level - for instance, genocide, crimes against humanity, war crimes and crimes of aggression779. In the last few years, the ICC and the special tribunals have grown in importance as they have come to embody the collective responsibility of the global community to deal with crimes against humanity780.
It is not difficult to single out fundamental principles of humanitarian law that could be given a constitutional status. The fundamental principles of humanity, non-discrimination, impartiality and neutrality that govern the conduct of humanitarian actors – which are included in common Article 3 and to which the ICJ has referred in many of its judgments781 – can certainly be considered to form part of an international constitutional core782. Also, the Martens Clause of 1899, which set out the guidelines for dealing with issues that had not been provided for in humanitarian law - usages established among civilized peoples, dictates of public conscience and laws of humanity - surely has to be regarded as part of a constitutional core in humanitarian law783. Furthermore, the prohibitions against genocide and crimes against humanity, laid down in Article 5 of the Rome Statute of the International Criminal Court, should belong to such a constitutional catalogue. Regarded in the light of constitutionalism, all these principles impose certain duties on all States and on the international community: they may not be set aside as a matter of State interest.
The most important principles of international humanitarian law - for example, the prohibitions against genocide and crimes against humanity - are considered to be jus cogens (peremptory norms) that are of such importance to the international community that they are binding under all circumstances, and therefore take precedence over all other provisions of international law. Very few norms of international law were regarded as peremptory until fairly recently: the principles of humanitarian law constitute the greater part of jus cogens. Furthermore, the erga omnes effect784 of the fundamental principles of humanitarian law and the absolute nature of the basic rules - in the sense that they are subject to no restrictions and that States cannot derogate from them (for example, see Article 10, para. 5 of the First Geneva Convention) - can be identified as constitutional elements on the international level785.
In dealing with international humanitarian law, as with all law, a positivist approach is generally chosen. Nevertheless, in tackling unsolved legal problems786, constitutionalism, as a method of construction or interpretation, makes it possible to widen the range of reference, to exploit unwritten basic principles and values of humanity and ideas like public conscience and global responsibility. One can see this at work in the ICJ’s advisory opinion on the legality of the threat or use of nuclear weapons (8 July 1996)787. The arguments of most of the judges in this instance were predominantly “philosophical” in nature. They were guided by the spirit and purpose of the fundamental principles of humanitarian law and the raison d’être of human civilization788.
On that occasion, Judge Ranjeva of the International Court of Justice wrote: “The moral requirements are not direct and positive sources of prescriptions or obligations but they do represent a framework for the scrutiny and questioning of the techniques and rules of conventional and consensual engineering. On the great issues of mankind the requirements of positive law and of ethics make common cause, and nuclear weapons, because of their destructive effects, are one such issue.”789 Judge Weeramantry made references to the philosophical ideas of John Rawls and H.L.A. Hart, about social and legal systems: “Such philosophical insights are of cardinal value in deciding upon the question whether the illegality of use would constitute a minimum component of a system of international law based on rationality or fairness. By either test, widely accepted in the literature of modern jurisprudence, the rule of international law applicable to nuclear weapons would be that their use would be impermissible. (…) The humanitarian principles discussed above have long passed the stage of being merely philosophical aspirations. They are the living law and represent the high-water mark of legal achievement in the difficult task of imposing some restraints on the brutalities of unbridled war. They provide the ground-rules for military action today and have been forged by the community of nations under the impact of the sufferings of untold millions in two global cataclysms and many smaller wars. As with all legal principles, they govern without distinction all nations great and small.”790 The foregoing demonstrates the usefulness of constitutionalism as a method of interpretation and construction in humanitarian law and its contributions to the law,as a system based on an approach that focuses on the individual human being: this is borne out by the examples of structural, substantial and hierarchical constitutional developments in international humanitarian law, and also, especially, by the precedent set by the advisory opinion of the ICJ791.
Relevance of the constitutional paradigm for international humanitarian law
To sum up, a number of distinctly constitutionalist tendencies can be discerned in various areas of international humanitarian law. I share the opinion that the constitutional method of interpretation might, in some respects, lead to a better understanding, ranking and ordering of structures of the international legal order. It would be helpful to define constitutionalism’s basic ideas, essential goals and long-term perspective and to see it in profile, as it were, and to evaluate its methods. I even put forward the thesis that international humanitarian law forms one part of the “core” of such a constitutional order, as a French oberserver said in a discussion. This might sound strange at first sight since, humanitarian law applies only in “phases passagères”, as “aide à travers une période critique particulière”, as a guideline for a “équipe humanitaire et étranger de passage”. The law is designed to function before, during and after armed conflict. My thesis, however, is that, in extremis, the irreducible essence of the law is revealed792.
Finally, constitutionalization is an idea in flux in the contemporary debate about international law. It has to be, and will be, further elaborated in the near future. The reflections in this chapter are an attempt to contribute to the discussion; they are by no means conclusive.
The destructive potential of technology
Up to this point, this book has been wafted along by “une passion du droit”793: What we seek is the rule of law – and not just rule by laws. Indeed, the role of law and of institutions should not be underestimated. Just and stable institutions play a central role in stabilizing political life internally as well as internationally. I have tried to demonstrate throughout how important the law is for constraining war, potentially and in actuality, and what remarkable progress has been made in establishing a legal framework for decisions concerning war and peace.
In a lecture at The Hague Academy in 1974, René Cassin distinguished between the period of the League of Nations and that of the United Nations: one, he said, was marked by the creation of a system of collective security and the other by the development of human rights. It may be that we are now witnessing the beginning of yet another era. Perhaps we have entered an age menaced by dangers posed by technological advances, something that cannot be dealt with by traditional legal means. Scientific progress does, of course, benefit society. But a darker consequence of advances in science is that we will soon be able, by error or terror, to destroy mankind, the planet itself. This risk is not new; after all, the doctrine of ‘mutually assured destruction’ was an aspect of the madness of the Cold War. But during the Cold War only governments – and only very few governments – had access to these weapons of doom. Now, groups like al Quaeda or an unhinged individual in isolation (for instance, the anthrax case in the United States) might be able to gain access to weapons of mass destruction, which might render traditional systems of control futile. “Humanity is more at risk than at any earlier phase in its history”794: this was the conclusion reached by Martin Rees, the distinguished British astrophysicist. But we are not prepared. Consciously or unconsciously, we ignore the most serious existential threats.
I have been talking about war and peace and an end to arms proliferation. I have also referred to law as a fairly effective “wall” against violence. But given the new globalized threat, perhaps this way of thinking has become obsolete? Perhaps law is powerless against new threats of the kind I have mentioned? Do we need a new public and professional ethic? Of scientific self-restraint? Or of collective responsibility?
Law has its limits. Everyone would agree to the truthfulness of this in daily life: for instance, civil law can and should deal only with a limited area of human interaction. The same is true at the international level. Imposing rules is not enough. These rules should grow and have the support of civil society, from the bottom upwards. We should remember that “humanitarianism” was one of the three major demands of the Age of Enlightenment. The others were “education” and “liberal democracy”795. To put it simply, people have to become aware of their responsibilities and think accordingly: this may seem idealistic, but, alas, it is a necessity. Legal principles must be internalized; they must have a bearing on the way decision-makers think and act; they have to influence the spirit that guides public opinion. But are these legal principles sufficiently heeded? The ethos we live in seems to me characterized by ennui, by ignorance, by our habit of pushing uncomfortable truths into a remote corner of our public consciousness.