Abstract
The rules of international humanitarian law of armed conflict are codified in a rather extensive body of treaty law. In addition, extensive research has been conducted into the rules of customary international humanitarian law. The author of this contribution will argue that there is another important source of positive international humanitarian law: principles of international humanitarian law. In this chapter, the role of the principles of international humanitarian law, the functions they perform and their legal significance as a source of international humanitarian law will be assessed. With general public international law as its starting point, the chapter discusses the sources of international humanitarian law. It explains the important role of the Martens Clause and provides examples of how the principles of international humanitarian law may be applied in contemporary armed conflicts.
The author is a legal adviser, Ministry of Defence of the Kingdom of the Netherlands and a researcher/PhD candidate at the Amsterdam Center for International Law (ACIL), University of Amsterdam. The topic of this chapter forms part of the author’s PhD research on the principle of proportionality in armed conflict. The author wishes to thank Terry Gill, Rogier Bartels, Emilia Richard and Paul Ducheine for their comments on an earlier draft version of this chapter. The author also thanks Frits Kalshoven, Geoffrey Corn, Etienne Henry and Tara Smith for their valuable insights. The opinions expressed in this contribution are those of the author and do not necessarily reflect the views of the Ministry of Defence or the ACIL. For any remaining errors only the author can be blamed. Refer to jcvandenboogaard@gmail.com for comments.
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Notes
- 1.
Kalshoven and Zegveld hold that: “the ‘limits’ of the law of war may be distinguished into principles and rules. Overriding principles are military necessity and humanity. The first principle tells us that for an act of war to be at all justifiable requires that it is militarily necessary: a practical consideration; and the other, that the act cannot be justified if it goes beyond what can be tolerated from a humanitarian point of view: a moral component. Obviously these are extremely broad principles: over time, they have been elaborated into ever more detailed principles and rules”. Kalshoven and Zegveld 2011, p. 2.
- 2.
The ICRC IHL treaty database lists 102 IHL treaties and documents. See: http://www.icrc.org/eng/resources/ihl-databases/index.jsp.
- 3.
Henckaerts and Doswald-Beck 2005a, Vol I-II.
- 4.
- 5.
See generally the ICRC Study on the Roots of Behavior in War, Muñoz-Rojas and Frésard 2004.
- 6.
This applies particularly for ground operations. The planning process of preplanned airstrikes against specific military targets will normally allow the planners at a higher headquarters to apply the detailed rules on targeting in full.
- 7.
Article 38 of the Statute of the International Court of Justice (ICJ) refers to “the general principles of law recognised by civilised nations” as one of the three major sources of international law. The Statute of the International Court of Justice, San Francisco, 26 June 1945, Trb. 1971, No. 55, http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.
- 8.
See for example Degan 1992, p. 1, stating that “[n]o other source of law raises so many doctrinal controversies as the general principles of law ‘recognized by civilized nations’ (…) Writers disagree on the substance and content of general principles of law, as well as their legal scope and relationship with the other main sources, namely treaties and customary law”; See also Shaw 2008, p. 99; Mosler 1995, p. 517; Henkin 1989, p. 61; Lammers 1980, p. 53.
- 9.
- 10.
Dworkin 1977, p. 22.
- 11.
Ibid., p. 24.
- 12.
Ibid., p. 26.
- 13.
Lammers 1980, p. 69.
- 14.
- 15.
Bantekas 2006, p. 126.
- 16.
Shelton refers to soft law as “any international instrument other than a treaty that contains principles, norms, standards, or other statements of expected behaviour”. See Shelton 2006, pp. 631, 632.
- 17.
Simma and Alston 1992, p. 102.
- 18.
- 19.
- 20.
- 21.
Friedmann 1963, p. 20.
- 22.
Degan 1992, p. 41.
- 23.
For the PCIJ, see for example the Chorzow Case (The Factory at Chorzow (Claim for Indemnity), Germany v. Poland), Merits, Judgment No. 13, 13 September 1928, PCIJ Series A, No. 17 (1928), pp. 47–53, http://www.icj-cij.org/pcij/serie_A/A_17/54_Usine_de_Chorzow_Fond_Arret.pdf, and the Lotus Case (The Case of the S.S. ‘Lotus’), Judgment No. 9, 7 September 1927, PCIJ Series A, No. 10 (1927), p. 31, http://www.icj-cij.org/pcij/serie_A/A_10/30_Lotus_Arret.pdf; The ICJ has applied principles of international law in many cases. As an example, the ICJ stated in the Anglo-Norwegian Fisheries Case: “it does not at all follow that in the absence of rules having the technically precise character alleged by the United Kingdom Government [concerning the course and length of straight base lines], the delimitation undertaken by the Norwegian Government in 1935 is not subject to certain principles which make it possible to judge as to its validity under international law”. See the Anglo-Norwegian Fisheries Case (Fisheries Case, United Kingdom v. Norway), Judgment No. 5, 18 December 1951, I.C.J. Reports 1951, p. 132, http://www.icj-cij.org/docket/files/5/1809.pdf; For a thorough survey of the practice of the PJIC and the ICJ, see Degan 1992, pp. 41–53.
- 24.
See supra note 23.
- 25.
Bassiouni 1990, pp. 778, 779.
- 26.
- 27.
Lammers 1980, pp. 64, 65.
- 28.
Torture is prohibited in both international and non-international armed conflicts; See Common Article 3 (1) (a) to the Geneva Conventions, Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Article 12, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GCI), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-970-English.pdf; Article 32, Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-973-English.pdf; Article 75 (2) (a) (ii), Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (API), Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125, http://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17512-English.pdf; See also Article 2 (2) of the United Nations Convention against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), New York, 10 December 1984, General Assembly of the United Nations, General Assembly Resolution 39/46, United Nations Treaty Series, Volume 1465, p. 85.
- 29.
ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment No. 1, 9 April 1949, I.C.J. Reports 1949, http://www.icj-cij.org/docket/files/1/1645.pdf, p. 22.
- 30.
The Lieber Code of 1863 already stated in Article 16 that “Military necessity does not admit of cruelty - that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions”. Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, as published in Schindler and Toman 2004, pp. 3–20.
- 31.
The doctrine of Kriegsraison geht vor Kriegsmanier that would allow for military necessity to set aside any other protective rule of international humanitarian law never became part of international law for exactly that reason; Garraway 2010b, p. 215.
- 32.
Dörmann 2002, p. 250.
- 33.
See Articles 26 and 34 of the 1969 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations Treaty Series, Volume 1155, p. 331.
- 34.
See the ICRC IHL treaty database: http://www.icrc.org/eng/resources/ihl-databases/index.jsp.
- 35.
The interoperability issue is however addressed specifically in Article 21 of the Oslo Convention on Cluster Munitions, Oslo, 30 May 2008. For the text of the treaty, see http://www.icrc.org/ihl.nsf/FULL/620?OpenDocument.
- 36.
Also, API, supra note 28, does not apply because the United States is not a party to it; See Hays Parks 2010, and compare Corn 2009, pp. 4–9; See also the ICRC IHL report for the 2011 Red Cross Conference: ‘Report on IHL and the challenges of contemporary armed conflicts’, pp. 48–53, available on: http://www.rcrcconference.org/docs_upl/en/31IC_IHL_challenges_report._EN.pdf.
- 37.
See for a clear analysis: Corn 2009, pp. 4–9.
- 38.
Obviously, the armed conflict in Afghanistan, starting in 2001, that led to the fall of the Taliban regime from power, was an international armed conflict until the Karzai government took office; See Ducheine and Pouw 2012.
- 39.
Corn and Talbot Jensen 2008, p. 789.
- 40.
Although the lack of applicable law was caused by a misinterpretation of the law rather than by a genuine gap, the result is the same.
- 41.
Ducheine and Pouw 2009, p. 76; Ducheine and Pouw argue that the armed conflict was also, from the side of Israel, aimed at Lebanon. Therefore, there would simultaneously be a classic international armed conflict between the two states.
- 42.
See for instance Pejic 2011, pp. 203, 204, arguing that there is no gap as far as the applicability of Common Article 3 is concerned; For Operation Enduring Freedom, the US Supreme Court came to a similar conclusion in its Hamdan v. Rumsfeld decision. See Supreme Court of the United States, Hamdan v. Rumsfeld, Secretary of Defence, et al., No. 05-184, 29 June 2006, United States Reports, Vol. 548. See http://www.supremecourt.gov/opinions/boundvolumes/548bv.pdf.
- 43.
Examples are the fact that there can be no situation of occupation in a non-international armed conflict, and the fact that the concept of prisoners of war is non-existent in non-international armed conflicts.
- 44.
For the applicability of Additional Protocol II to a non-international armed conflict, additional requirements must be met. See Article 1 of Additional Protocol II, Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (APII), Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125, http://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17513-English.pdf.
- 45.
Some rules of the Protocols to the 1980 Conventional Weapons Convention could still be applicable during non-international armed conflicts for states that have also ratified the extension of the applicability of the Amendment of the Convention of 2001, for example Article 2 of Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons; 1980 Conventional Weapons Convention (Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II and III)), Geneva, 10 October 1980, United Nations Treaty Series, Volume 1342, p. 137; Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 21 December 2001, United Nations Treaty Series, Volume 2260, p. 82.
- 46.
For a general discussion on the applicability of treaty and customary rules on non-state armed groups, see Clapham 2010.
- 47.
Van Hegelsom 2010, p. 110.
- 48.
See for example Shaw 2008, pp. 72–93 and the accompanying notes.
- 49.
See Kirgis 1987 for an appreciation of the way the ICJ dealt with this situation in the Nicaragua Case (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)), Merits, General List No. 70, 27 June 1986, I.C.J. Reports 1986, p. 14, http://www.icj-cij.org/docket/files/70/6503.pdf.
- 50.
See Henckaerts & Doswald-Beck 2005a, vol I, p. XXXI-XLV, the contributions of Bethlehem, Scobie and Hampson to the book by Wilmshurst and Breau 2007, Bellinger and Haynes 2007, and Henckaerts 2007 for a discussion on the various aspects of the methodology used in the ICRC Customary International Humanitarian Law Study.
- 51.
For example Kalshoven and Zegveld 2011 extend criticism to the way the ad hoc tribunals for Rwanda and the former Yugoslavia have identified customary international law and conclude that the tribunals should actually have been referring to principles: “In particular, this more recent extension of the scope of customary law of armed conflict appears to rest on the assumption that for this type of armed conflict, general opinion about preferred behaviour outweighs the requirement of demonstrable practice seen as law. To the extent that this ‘general opinion of preferred behaviour’ reflects accepted principle, we would prefer to call it that”. And with regard to the ICRC Customary Law Study: “in particular with respect to internal armed conflict not all of these rules may rest on the type of actual field practice traditionally required of rules of customary law. Yet they may well reflect existing principles and thus deserve to be promoted under that heading”. See Kalshoven and Zegveld 2011, p. 5; See also Baker 2010.
- 52.
- 53.
That does not mean, of course, that there is no oversight at all. For example, there was a practice of relatively independent oversight in the armed forces of the Kingdom of the Netherlands by the Royal Military Constabulary (Koninklijke Marechaussee) and the office of the Public Prosecutor of the Arnhem District Court with regard to instances where the members of the military used armed force during the deployment of Dutch troops in the Afghan province of Uruzgan from 2006 to 2011. Another example is the investigation into the bombing of two stolen fuel tankers on 4 September 2009 in Kunduz, Afghanistan. It was investigated by the German prosecutor and by the German Bundestag; See for the report of the Bundestag: http://dip21.bundestag.de/dip21/btd/17/074/1707400.pdf.
- 54.
Fellmeth mentions four reasons: the fact that the concept of sparing the civilian population in armed conflict emerged only rather recently, the fact that the way military operations are conducted is usually contingent on confidentiality restrictions, the fact that “few states are eager to publicize their own crimes” and, finally, the fact that most armed conflicts nowadays have a non-international character, and states regard the treatment of their own civilians as a “matter of sovereign internal control”. See Fellmeth 2010, pp. 2, 3.
- 55.
Shamash 2005, p. 146.
- 56.
See Cohen 2010, pp. 29–36.
- 57.
Fellmeth 2010, p. 3.
- 58.
Particularly in the ICRC Customary Law Study, see Henckaerts and Doswald-Beck 2005b, Volume II, Practice.
- 59.
See for example Schmitt 2007, p. 133.
- 60.
See for example the reference to this manual in Henckaerts and Doswald-Beck 2005b, Volume II, Part I, p. 27.
- 61.
Schmitt 2007, pp. 132, 133.
- 62.
See on the methodology to establish rules of customary international humanitarian law the discussions that were the result of the first edition of the ICRC Customary Law Study: Henckaerts and Doswald-Beck 2005a, vol. I, pp. xxxi–xlv; Henckaerts 2007, pp. 178–184; Meron 2005; Dinstein 2006, pp. 3–8; Bothe 2007, pp. 154–163, the critical remarks of the US Government as voiced by Bellinger and Haynes 2007 and the response by Henckaerts, see Henckaerts 2007; See also generally Penna 1984, pp. 202–209.
- 63.
See for example the foreword by the ICRC president, Dr. Jakob Kellenberger in Henkaerts and Doswald-Beck 2005a, vol. I, p. x.
- 64.
According to Best, his name was Fedor Fedorivitch Martens, “a jurist in the service of the Tsar, who served as Russia’s principal expert in international law from the seventies until his death in 1908”. See Best 1980, p. 163.
- 65.
- 66.
Cassese 2000, p. 216.
- 67.
See the preamble to the 1925 Gas Protocol (Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare), Geneva, 17 June 1925, United Nations Treaty Series, LON Number 94; Article 63 (4) GCI, supra note 28; Article 62 (4) GCII, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GCII), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-971-English.pdf; Article 142 (4) GCIII, Geneva Convention relative to the Treatment of Prisoners of War (GCIII), Geneva, 12 August 1949, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-972-English.pdf; Article 158 (4) GCIV, supra note 28; The preamble to the 1980 Certain Conventional Weapons Convention, supra note 45; and Article 1 (2) of API, supra note 28; Note that the wording as codified in API has changed slightly since its first adoption; As Pustgarov notes: “Reckoning up the comparison, one can assert that Protocol I changed the Martens clause only in one point: it omitted the notion of ‘civilized nations’. In other respects, it replaced outdated words with the language of contemporary legal parlance (‘basic tenets’ with ‘principles’, ‘belligerents’ with ‘combatants’). The replacement of the term ‘population’ by ‘civilians’ did not change the content of the notion. But it has a definite meaning for humanitarian law, which attempts strictly to distinguish the civilian population and individual civilians from combatants with a view to protecting the former from the consequences of military operations. ‘The laws of humanity’ are synonymous in content with ‘the principles of humanity’”. See Pustogarov 1999, p. 128.
- 68.
Meron 2006, p. 18.
- 69.
Krupp et al., Case No. 214, Judgment of 31 July 1948, (United States Military Tribunals 1948), reprinted in Lauterpacht 1948, pp. 620, 622.
- 70.
Kalshoven 2006, p. 51.
- 71.
Miyazaki 1984, p. 436; The provisions of API, supra note 29, are obviously only binding on the states that have ratified it.
- 72.
Skordas 2003, p. 325.
- 73.
- 74.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, General List No. 95, 8 July 1996, I.C.J. Reports 1996, http://www.icj-cij.org/docket/files/95/7495.pdf, p. 226, para 78 on p. 257 and para 87 on p. 260.
- 75.
See ICTY, Prosecutor v. Furundzija, Trial Chamber, IT-95-17/1-T, 10 December 1998, para 137, see http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf; ICTY, Procsecutor v. Kupreskic et al., Trial Chamber, IT-95-16-T, 14 January 2000, paras 525 and 526, see http://www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf; ICTY, Prosecutor v. Martic, Trial Chamber, IT-95-11-T, 12 June 2007, para 467, see http://www.icty.org/x/cases/martic/tjug/en/070612.pdf; See also Meron 2006, p. 22.
- 76.
Strebel 1995, p. 327.
- 77.
As an illustration of this static character, one may refer to the fact that the major codifications of international humanitarian law have always been concluded after major armed conflicts, too late to be meaningful in the preceding war. International humanitarian law then seems less efficient in fulfilling its most important function: to protect people from the horrors of armed conflict.
- 78.
Ticehurst 1997, p. 128.
- 79.
Greig 1985, p. 49.
- 80.
Nuclear Weapons Advisory Opinion, supra note 75, paras 78 and 87; See also Meron 2006, p. 18.
- 81.
- 82.
Klabbers 2006, p. 73.
- 83.
- 84.
See for example Greenwood, who holds that the suggestion that the Martens Clause goes further than customary international law “is impracticable since the ‘public conscience’ is too vague a concept to be used as the basis for a separate rule of law and has attracted little support”. See Greenwood 2008, pp. 34, 35; See also Dinstein 2010, pp. 8, 9.
- 85.
Sandoz et al. 1987, p. 39.
- 86.
Ticehurst 1997, p. 125.
- 87.
- 88.
For a discussion on the hierarchy of sources of international law, see Shaw 2008, pp. 123–127.
- 89.
Such as Article 36 API, supra note 28, mentioned above and the implementation provisions regarding the dissemination of international humanitarian law and the availability of (military) legal advice, see for example Articles 82 and 83 API, supra note 28.
- 90.
As Arne Will Dahl eloquently phrased this question: “when one uses the tools of war, should one also use the rules of war?” Dahl posed this statement during the Conference of the International Society for Military Law and the Laws of War in Tunis, 2010; For the proceedings, see the Military Law and the Law of War Review 2009, vol. 48, no. 4, pp. 473–498.
- 91.
Garraway 2010a, p. 133.
- 92.
See DoD Directive 2311.01E of 9 May 2006, DOD Law of War Program, updated 22 February 2011, also available online, see: http://www.dtic.mil/whs/directives/corres/pdf/231101e.pdf.
- 93.
See Corn 2009, p. 6: “what national policy makers giveth, national policy makers can taketh away”.
- 94.
Corn notes that in the context of the Global War on Terror, even if it would be accepted that the principles should be applied as a matter of policy, they should be applied in full. See Corn 2009, pp. 7–9.
- 95.
- 96.
Corn 2009, p. 33.
- 97.
Corn 2009, pp. 28, 29.
- 98.
United Nations Secretary-General (UNSG), Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, ST/SGB/1999/13, available at: http://www.unhcr.org/refworld/docid/451bb5724.html, accessed 28 August 2012; See Roberts and Guelff, p. 725.
- 99.
Prefatory note, Roberts and Guellf 2000, p. 721.
- 100.
For a thorough discussion of the obligations arising out of international humanitarian law for United Nations and other international organizations involved in military missions, see Sams 2011, pp. 45–71.
- 101.
Corn notes that “While the characterization of the conflict remains significant for the purpose of applying specific treaty obligations, denying applicability of core LOAC principles merely because a de facto armed conflict does not fit within the inter/intra-state law-triggering paradigm is operationally counter-intuitive”. See Corn 2009, p. 20; Corn’s approach does ultimately lead to the identical conclusion that the principles of international humanitarian law apply as a matter of law. In my view, however, the authority that decides on the type of rules of engagement is in essence making a policy decision, and not creating law. For the soldiers who have to apply these principles during their operations, it obviously does not make a difference how the principles have become binding upon them.
- 102.
Exchange of letters constituting an agreement between the United Nations and Belgium relating to the settlement of claims filed against the United Nations in the Congo by Belgian nationals, New York, 20 February 1965; See UNITED NATIONS JURIDICAL YEARBOOK, 1965, Part One, Legal status of the United Nations and related inter-governmental organizations, Chapter II, Treaty provisions concerning the legal status of the United Nations and related inter-governmental organizations, pp. 39–41.
- 103.
Corn 2009, p. 35 and the accompanying notes.
- 104.
See for example Kalshoven 2004, p. 156: “That civilians ought to be respected in any situation of armed conflict may be regarded as an application of what the ICJ referred to as long ago as 1949, in the Corfu Channel case, as ‘elementary considerations of humanity’. To me, the Court’s ‘considerations of humanity’ do not provide yet another source of law: they are, literally, considerations that underlie the principles and rules of IHL. Being no more than that, they are not necessarily decisive in all circumstances. As considerations go, they have to compete among themselves. And in matters of warfare, humanity may be one elementary consideration but military necessity is another.”
- 105.
See the preamble to the St. Petersburg Declaration (Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight), Saint Petersburg, 29 November/11 December 1868, reprinted in Schindler & Toman 2004, p. 91–93 and Article 35 (1) API, supra note 28.
- 106.
See Roberts, explaining that “The ‘equal application’ principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes”. In other words, this means the need to separate between ius in bello and ius ad bellum. See Roberts 2008, p. 932.
- 107.
- 108.
Hayashi calls this the dislocating function of the Martens Clause, see Hayashi 2008, p. 149.
- 109.
- 110.
Corn 2009, pp. 32, 33.
- 111.
- 112.
References
Online Documents
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van den Boogaard, J.C. (2013). Fighting by the Principles: Principles as a Source of International Humanitarian Law. In: Matthee, M., Toebes, B., Brus, M. (eds) Armed Conflict and International Law: In Search of the Human Face. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-918-4_1
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