!! draft !! Preface 4 introduction 9 chapter one 19



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CHAPTER ONE



INTERNATIONAL HUMANITARIAN LAW: A UNIQUE REGIME



„So wenig die Sprache und Civilisation einer Nation in Folge einer Kriegserklärung plötzlich verschwindet und in die ursprüngliche Rohheit und Barbarei zurücksinkt, ebenso wenig kann die Rechtscultur, das Erzeugnis einer Arbeit von Jahrhunderten auf einmal wieder erlöschen und ein Zustand völliger Rechtlosigkeit an seine Stelle treten.“

- Johann Caspar Bluntschli17


“No doubt the sentiment (of lines of logical development) is powerfully reinforced by what is often nothing but an intellectual passion for elegantia juris, for symmetry of form and substance.”

- Benjamin N. Cardozo18



The aim of international law has been described as replacing war by a system of peaceful co-existence and cooperation among States (and other subjects of international law) based on institutions, procedures and rules of conduct. The elimination of war by international law was a guiding ideal of the League of Nations. The League’s efforts to abolish war had at times “flowed in a veritable river of hope”19.
Since then, however, international law has become much more complex and diversified. But the use of force is still, explicitly or implicitly, one of its major concerns. While trying to effect a total ban on armed conflict, modern international law does not ignore the fact that war nevertheless occurs. Its approach is both idealistic and realistic. Should the prohibition against armed conflict be ignored, international law is not, as it were, rendered impotent. It has another means to ensure that armed conflict does not result in unchecked destruction: International humanitarian law, the purpose of which is to infuse to the greatest extent possible the conduct of war with the civil ethics of life.

      1. Jus ad bellum and jus in bello


Modern international law thus – realistically and pragmatically – offers two types of response to the challenges of war: a set of rules known as jus ad bellum and another called jus in bello20. The aim of both is to limit war and to reduce the suffering caused by it. Jus ad bellum - droit à la guerre in French and in English “the right to wage war” - deals with the decision to resort to war. Its purpose is to limit recourse to military force. On the other hand, jus in bello - droit dans la guerre in French and in English “law in war” - applies once jus ad bellum has failed to achieve its – ultimate – purpose, meaning that an armed conflict is under way. It deals with the military conduct of hostilities and its aim is to humanize war as much as possible.

Jus ad bellum underwent a revolutionary change following the Second World War.21 The rules of classic international law, which emerged from the Peace of Westphalia (1648), had recognized the right of States, by virtue of their sovereignty, to engage in war as they pleased. Thus, the jus ad bellum was essentially a free-for-all. Previously, following the doctrines developed by theologians and philosophers in the Middle Ages, a distinction used to be made between “just” and “unjust” wars, and only the former were considered lawful22. However, the United Nations Charter, for the first time in history, prohibited – as a general rule – the threat or use of force in international relations. Using domestic legal systems as a model, the framers of the Charter granted the Security Council of the United Nations a monopoly on the proper use of force on an international level23. Apart from military force exercised or sanctioned by that body, the only military action by a State against another State that is considered lawful is that which is undertaken in self-defence.
Unlike that of the jus ad bellum, the development of the jus in bello was consistent.24 In fact, the jus in bello is one of the oldest branches of international law. It limits the choice of means and methods of warfare, and protects those affected by hostilities.25 Jus in bello, or International Humanitarian Law is the most important body of international law applicable in armed conflict. Today, it applies not only to international armed conflict, but also to civil wars (non-international armed conflicts). In its Tadic decision (1995), the International Criminal Tribunal for the former Yugoslavia provided this definition of an armed conflict:

“[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.”26


While under the outdated “just war” doctrine, the rights and duties of the belligerents depended on the question of whether their cause was “just” or “unjust”, the jus in bello is not linked to, or dependent on, the rules concerning the initiation of hostilities. It is not affected by a breach of the ius ad bellum. It regulates warfare, regardless of whether a particular war is “just.” Under the jus in bello, all the parties to a conflict have the same rights and are obliged to respect the same obligations.27 Rules of war call for restraint even when an adversary has committed atrocities, or when a State has been the subject of an unjust attack and therefore is reluctant to restrain itself28. One reason for the strict separation of the two legal regimes29jus ad bellum and jus in bello – is that it is often difficult to decide which party’s use of force is “just” or lawful and which one’s “unjust” or unlawful. Can a general, a soldier, a statesman, a politician or even a historian say with certainty whose cause was legitimate?30 It is – so another argument runs – neither viable nor sensible to make the applicability of the law of war dependent on the justness of its cause. That is because it would be absurd, not to say unjust in the extreme, to make the protection of war victims, who very often have no say in the decision to resort to war, dependent on whether their rulers’ decision to go to war was “just”. It might be added that to extend the protection of the law only to those who fight for a “good cause” might fuel their zeal to fight and to go on fighting and thus to prove that justice is on their side. A war must not turn into a Gottesurteil, a trial by ordeal. Did not an English author once write: “The more heavenly the goal, the more devilish the means”?

      1. Origins and development

A. Formative ideas


The rules of international humanitarian law that are applicable today are largely – if not exclusively31 – the product of the legal culture of the second half of the nineteenth century32. In 1859, Henri Dunant, a citizen of Geneva, happened to witness the aftermath of one of the bloodiest battles of the century, at Solferino in Italy. Three years later, in A Memory of Solferino he gave his account of what he had seen. Dunant – a tourist, as he described himself later – had walked across the field where the French and Austrian armies had clashed. Shocked by the suffering of the wounded soldiers who lay abandoned on the field, he tried to organize nearby villagers (women and other members of “civil society,” as we might say today) in order to bring them relief. Shortly afterwards, in 1862, Dunant gave the world his plan for protecting wounded and sick soldiers. But he was not content with philanthropy. He proposed that the rules he had suggested be codified in an international treaty. Dunant’s idea rested on three pillars. The first was his belief in the ability of the law to limit and control violence, a conviction that was in marked contrast to the attitudes of the period. The second was his enlightened belief in universal values such as the idea that enemy combatants who fell into one’s hands should be treated in accordance with the same principles as one’s own military personnel (traditional rules and customs of warfare required this only within one’s own cultural sphere, among Christians or Muslims, for instance). The third pillar – and a vital aspect of Dunant’s personal philosophy – was the emphasis on the individual human being. This approach implied an unprecedented degree of intrusion into the previously sacrosanct sphere of State sovereignty33. Dunant was the creator of the International Committee of the Red Cross and, in a way, one of the first and most powerful precursors of modern civil society. He was ahead of his time. The world has since caught up with him, partly the result of the human rights revolution in international law.

B. The Law of Geneva and the Law of The Hague


Broadly speaking, three kinds of motives have inspired the recognition and application of the law of war throughout history. First, self-interest based on the idea of reciprocity: a party wishes to have its own forces protected by the enemy and therefore is willing to grant the same protection to those of the enemy. There is a constant fear that violations of the law by one’s own forces would cause retribution in kind. Second, codes of honour for combatants: examples worth mentioning are found in Europe in the Middle Ages, in India under the Code of Manu and in most other cultures. A third motive for recognizing and applying the law of war may be ascribed to ideals of humanity. These were – and still are – the ideas underlying the development of international humanitarian law.
Humanitarian law originally consisted of two bodies of law: the “Law of Geneva” (named after the original Geneva Convention of 1864, which eventually developed into the much more far-reaching Geneva Conventions of 1949) and the “Law of The Hague” (named after the peace conferences held in The Hague in 1899 and 1907). The “Law of Geneva” concerns itself with the protection of victims of war: wounded and sick soldiers, prisoners of war and civilians, and combatants who are hors de combat. In contrast, the rules governing the means and methods of warfare, most of them codified by the 1907 Hague Peace Conference, are central to the “Law of The Hague.” To draw a clear-cut distinction between the “Law of Geneva” and “the Law of The Hague” is no longer possible because Additional Protocols I and II of 1977, which have further developed and thereby integrated the two bodies of law, contain provisions both for the protection of victims and for regulating the means and methods of warfare.34 The distinction, however, is still common and, it must be admitted, has a didactic value.

      1. Specific aspects


Many international lawyers regard international humanitarian law as a highly specialized field of law containing many legal documents and provisions formulated in detail in a language that is not easily accessible (the Geneva Conventions alone consist of over 400 articles and numerous annexes). But international humanitarian law constitutes – as Georges Abi-Saab has established with great lucidity35 – a specific model of law, the significance of which goes beyond the realm of humanitarian law with its many rules. There are, one might say, six key aspects of international humanitarian law:
First, the human person is assigned the highest value. Individuals are protected and assisted when they suffer the effects of armed conflict. To a significant degree, human beings clearly possess individual rights under international humanitarian law. In no other field of international law was the idea expressed at such an early stage and so clearly that, beyond all technical considerations, the point of the law is to serve the individual, in this case the victims of armed conflict36. Humanitarian law is based on common values – if I might borrow this expression from Rosalyn Higgins – “that speak to us all”37. It addresses our common humanity. It recognizes the wounded combatant as a human being, and one in need of our help, even if he or she belongs to the enemy. Every wounded combatant could – so the reasoning goes – be my own father or child or some other relative.
Second, by virtue of their logic, the rules of international humanitarian law aspire to universality. They are applicable not only within a particular community of nations or within other communities based on shared values but across cultural and geographical boundaries, and even across lines of battle. It is important to note that the rules of international humanitarian law are minimal norms that must be respected with regard to an adversary. This aspiration to universality is matched by the almost universal approval of the rules of IHL: almost every State has accepted the key instruments of this body of law.
Third, international humanitarian law developed into a system of objective rules that had moved away from its previous contractual basis and is now guided by its own intrinsic purpose. A fundamental principle is laid down in Article 1 common to the four Geneva Conventions (common Article 1): it stipulates that the Conventions’ provisions must be complied with “in all circumstances”38. This means that under the Conventions, States are obliged to renounce reciprocity and reprisal, both of which had long been the means of punishing breaches of the law. But in IHL both are now prohibited39.
Fourth, the same jus in bello rules apply equally to all parties in a conflict: the choice of means available to the party that is attacked is as limited as that available to the aggressor. The law of war imposes equal responsibilities on lawful and unlawful belligerents.
Fifth, the rules of international humanitarian law are binding, erga omnes40, which means that all States, even those unaffected by hostilities, may protest against violations and demand compliance. This fundamental principle is also laid down in common Article 1, which obliges States Parties “to respect, and ensure respect for(emphasis added) the provisions of the four Geneva Conventions. Protecting people affected by war is thus conceived of as a matter of public concern within the international community41.
Sixth, the basic norms of international humanitarian law are generally recognized as having a peremptory status, of jus cogens42, in the hierarchy of norms in international law. International humanitarian law is designed to cope with the extreme circumstances that arise during war. As is the case with certain fundamental human rights norms, such as the prohibition of torture, the basic norms of international humanitarian law may not be restricted and no derogation from them is permitted. The balance between principles and limitations that is included explicitly in the guarantees of the human rights systems is also incorporated into international humanitarian law provisions. The rules of international humanitarian law are absolute.
It should be obvious from the foregoing that international humanitarian law contains some of the most fundamental rules of international law. Its basic norms take precedence over all other legal considerations, overriding some of the oldest principles of international relations and incorporating universal values. Since its advent, international humanitarian law has had a progressive effect on the development of international law; it has also anticipated the emergence of the individual as a subject of international law. Within international law, some norms are more important than others; but all of them yield precedence to the basic provisions of international humanitarian law. One might therefore be tempted to ask whether they form part of a constitutional core in international law43. I shall return to this question in the concluding chapter.

At this point, it shall be remembered that international humanitarian law has contributed to important advances in international law. But the changing nature of conflict requires us to reconsider the provisions of international humanitarian law again and again. Let me now mention three dichotomies underlying and shaping international humanitarian law, and the tensions within this body of law.



      1. Three fundamental dychotomies

A. “International” and “non-international” armed conflicts44


International humanitarian law has its origin in wars between States or “international armed conflicts” most notably in the battle of Solferino, which has already been mentioned as the birthplace of modern international humanitarian law. It developed further in the aftermath of later wars - the German-French war of 1870/1, for instance, and both World Wars. However, with the passage of time, the shape of armed conflict has changed dramatically. Today, few armed conflicts are purely international in character, and they no longer take place on clearly delineated battlefields. Most armed conflicts in our time are internal or hybrid - internal/international - in character45. In spite of this development, the rules concerning international armed conflicts remain far more elaborate than those designed to regulate non-international armed conflicts: they are more precise and more sophisticated. This imbalance is now being corrected in significant measure by a far-reaching study, undertaken by the International Committee of the Red Cross, to codify the main rules of customary international humanitarian law. As these rules are generally the same for both types of armed conflict, the line dividing them is becoming more and more blurred46.
This is a favourable development. It means that the victims of non-international armed conflicts come in for greater protection under international humanitarian law. It is also a reasonable development. Is it just to make protection for those affected by hostilities dependent on the character of the conflict? Human beings deserve the same protection, regardless of whether they are affected by a battle taking place within one country or across borders. That is why the Security Council and other international bodies, when demanding respect for international humanitarian law, pay no heed to the legal classification of a conflict47. And that is also why the Yugoslavia Tribunal refused to apply different standards to different types of conflict48.
However, governments are reluctant to accept constraints in suppressing rebellions. They want to have a free hand in dealing with what they regard as an “internal affair“. This attitude is understandable, albeit short-sighted. We have already seen how, in the nineteenth century and in the first half of the twentieth, when international humanitarian law was developed to regulate “international wars,“ the community of States agreed to respect its provisions, regardless of whether a party’s cause was thought to be illegitimate or “unjust”. I wish to repeat that this conception of international humanitarian law was facilitated by three insights. First, no one can reliably establish beyond question whose cause is legitimate and whose is not. Second, disrespect for international humanitarian law and the use of brute force by one party are likely to provoke retaliation in kind by the other side. And third, a legal system based on neutrality and impartiality tends, by its very existence, to deflate hatred, feelings of humiliation and revenge and other similar emotions. The same reasoning should be applied to internal wars. From a government’s point of view, a rebellion is always illegitimate. But that attitude cannot be used to justify limitlessness of choice in the means and methods used against rebels. And it must not curtail the scope of protection usually granted to the victims of armed conflict. The vanishing significance of this first dichotomy in the law of war is therefore to be welcomed.

B. Combatants and non-combatants49


Another traditional distinction in international humanitarian law can also be found in two other dichotomies: between combatants and non-combatants and between military objectives and civilian objects. These two distinctions exist to restrict on the conduct of war, in order to protect civilians and civil objects. But the realities of modern warfare increasingly blur long-standing differences in these categories: it is becoming much more difficult to distinguish one from the other. For instance, is it only the soldier using the weapon who is a combatant, or should the person operating the relevant computer system, delivering war material or information etc. also fall into this category? It is, as we shall see, one of the main challenges of contemporary international humanitarian law to shed more light on this ill-lit area of delimiting various kinds of status in humanitarian law, by developing clearer definitions and applying them to persons and activities under the changing conditions of modern warfare.
In many circumstances, however, there is no doubt about the civilian status of war victims. One of the main purposes of modern international humanitarian law is the protection of civilians. In the European wars of the nineteenth century and the early years of the twentieth, most of the victims were soldiers. This began to change in the middle of the twentieth century50. The provisions of the Fourth Geneva Convention of 1949 were a response to the staggering number of civilian deaths during the Second World War. Even so, in most recent wars, many of them non-international in character, civilians seem to have shouldered an even greater share of the burden of war. In some cases, civilians are reported to have made up about 90% of all deaths51. We may therefore ask how those not taking a direct part in hostilities may be better protected. And it may be reasonable to ask also whether international humanitarian law has failed and is currently failing in its mission to protect civilians from the worst consequences of war. We will come back to these questions later on.
Let me conclude this overview with some remarks on specific actors and specific means of implementation.

C. Actors and modes of implementation


As far as actors are concerned, it should be mentioned that international humanitarian law is, first and foremost, applicable to “parties” in armed conflicts, which include non-State military actors. The ability to pierce the “veil” of sovereignty and to directly reach organized groups within States is one of the special strengths of international humanitarian law when compared to human rights law. Also, the institutional set-up is different for the two legal systems. The ICRC plays the predominant role in international humanitarian law. Its delegates are not just “social workers on the battlefield”, but troisième combatants, (Niklas Luhmann) or “third combatants”52. And it is mandated by the international community with the task of developing international humanitarian law and monitoring its application; it is, for this purpose, recognized as a subject of international law sui generis53. The ICRC is regarded as the “guardian” of international humanitarian law. However, it has been joined, and is supported, by a growing number of players in the field: for instance, other components of the International Red Cross and Red Crescent Movement (National Red Cross and Red Crescent Societies and the International Federation of Red Cross and Red Crescent Societies), NGOs like Médecins Sans Frontières, Oxfam, Amnesty International, and Human Rights Watch. All these organizations participate, in various ways and to different degrees, in protecting and assisting victims of war. The core functions of the ICRC remain the same: monitoring conditions of detention and providing humanitarian relief to the victims of armed conflict. It is one of the principal aims of the ICRC and of other humanitarian actors to gain access to victims. One of the challenges the ICRC faces today is to define and realize its specific role in a fast-growing and crowded field of humanitarian actors.54
Support for the implementation of international humanitarian law is growing markedly: it is provided by a rapidly evolving legal framework. Besides the various legal and disciplinary mechanisms created within domestic law, international institutions like war crimes tribunals and human rights courts or court-like institutions, as well as a variety of political bodies and procedures established within international organizations, are all growing in importance. I would like to mention a specific method for making international humanitarian law standards work: the concept of a “humanitarian space”. I see it in the form of a pyramid. The ordinary rules of international humanitarian law (black-letter or customary rules) form the base of the pyramid and the principles of “independence,” “impartiality” and “neutrality” its walls. The International Court of Justice has put it more formally. It stated, in the Nicaragua case, that acts based on core rules of international humanitarian law (common Article 3), and carried out in accordance with the operative principles that have just been mentioned, namely impartiality and non-discrimination, may not be characterized as unlawful interference into the internal affairs of a State55.
***

Let me conclude this chapter by stressing the importance of the concept of the “rule of law,” and by stating once again how outdated the views of Cicero and Count Helmuth von Moltke appear today on the background of modern legal developments. A passage from a judgment handed down by the Israeli Supreme Court, on the legality of the delicate, very controversial question of preventive strikes against terrorists, makes the point emphatically:

“The saying ‘when the cannons roar, the muses are silent,’ is well known. A similar idea was expressed by Cicero, who said: ‘During war the laws are silent' (silent enim leges inter arma). Those sayings are regrettable. They reflect neither the existing law nor the desirable law (…) Every struggle of the State – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the State must comply with (…). Indeed, the State’s struggle against terrorism is not conducted ‘outside’ of the law. It is conducted ‘inside’ the law, with tools that the law places at the disposal of democratic States.”56



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