A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference [1 ed.] 9783428530403, 9783428130405

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Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Band 173

A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference Edited by

Thomas Giegerich Assistant Editor:

Ursula E. Heinz

asdfghjk Duncker & Humblot · Berlin

THOMAS GIEGERICH (Ed.)

A Wiser Century?

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Herausgegeben von J o s t D e l b r ü c k, T h o m a s G i e g e r i c h und A n d r e a s Z i m m e r m a n n Walther-Schücking-Institut für Internationales Recht 173

Völkerrechtlicher Beirat des Instituts: Christine Chinkin London School of Economics

Eibe H. Riedel Universität Mannheim

James Crawford University of Cambridge

Allan Rosas Court of Justice of the European Communities, Luxemburg

Lori F. Damrosch Columbia University, New York Vera Gowlland-Debbas Graduate Institute of International Studies, Geneva Rainer Hofmann Johann Wolfgang GoetheUniversität, Frankfurt a.M. Fred L. Morrison University of Minnesota, Minneapolis

Bruno Simma International Court of Justice, The Hague Daniel Thürer Universität Zürich Christian Tomuschat Humboldt-Universität, Berlin Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference Edited by

Thomas Giegerich Assistant Editor:

Ursula E. Heinz

asdfghjk Duncker & Humblot · Berlin

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. # 2009 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 1435-0491 ISBN 978-3-428-13040-5 Printed on no aging resistant (non-acid) paper ∞ according to ISO 9706 *

Internet: http://www.duncker-humblot.de

Preface The papers published in this volume were presented at an international symposium organized by the Walther Schücking Institute for International Law and held in Kiel from 8–10 November 2007. The President of the Parliament of the State of Schleswig-Holstein generously permitted us to convene in their plenary assembly hall. This was a great privilege for which we are very grateful. It provided the presentations and our lively discussions with a wonderful setting overlooking the Kieler Förde. We are also indebted to the institutions whose financial contributions enabled us to invite academics and practitioners from so many European and overseas countries and also ultimately publish this book: the German Research Association, the German Red Cross and the Government of the State of Schleswig-Holstein. Last not least, the organization of the symposium was only possible with the able assistance of numerous staff members of the Walther Schücking Institute who worked under the direction of my tireless secretary, Carmen Thies. The present volume was diligently prepared for publication by Dr. Ursula Heinz and Andrea Neisius.

Kiel, June 2009

Thomas Giegerich

Contents Introduction

Thomas Giegerich Prevention and Containment of War – Two Fateful Missions Unaccomplished . .

11

Jost Delbrück Walther Schücking’s Contribution to the International Rule of Law . . . . . . . . . . .

53

Stephen C. Neff The Hague Peace Conferences and a Century of Further Struggles . . . . . . . . . . . .

59

Non-Proliferation and Disarmament

Ian Anthony Weapons of Mass Destruction: Reduction of Stockpiles and Non-Proliferation . .

89

Heike Krieger Disarmament Obligations of and Assurances of Non-Use by Nuclear Weapons States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Christian Schaller Keeping Weapons of Mass Destruction from Terrorists – An International Law Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Knut Dörmann Conventional Disarmament – Nothing New on the Geneva Front? . . . . . . . . . . . . 143 Christiane Höhn International Humanitarian Law in the European Union’s Common Foreign and Security Policy, in Particular the EU Code of Conduct on Arms Exports . . . . . . . 167

8

Contents The Ups and Downs of International Humanitarian Law

Sean D. Murphy Protean Jus ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Christine Gray The International Community’s “Responsibility to Protect” Populations from War Crimes and Other International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Kirsten Schmalenbach Preventing and Rebuilding Failed States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Dagmar Richter Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Rainer Hofmann Can Victims of Human Rights Violations Claim Damages? . . . . . . . . . . . . . . . . . 323 Ralph Wilde From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers . . . . . . . . . . . . . . . . . . . . 333 Eyal Benvenisti The Law on the Unilateral Termination of Occupation . . . . . . . . . . . . . . . . . . . . . 371 Gregory H. Fox A Return to Trusteeship? A Comment on International Territorial Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 Robert Heinsch The International Committee of the Red Cross and the Challenges of Today’s Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 Walter Kälin The ICRC’s Compilation of the Customary Rules of Humanitarian Law . . . . . . . 417 Hans-Joachim Heintze Terrorism and Asymmetric Conflicts – A Role for the Martens Clause? . . . . . . . . 429

Contents

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Dispute Settlement by International Courts or Arbitral Tribunals

Karin Oellers-Frahm Nowhere to Go? – The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Bruno Simma How Has Article 36 (2) of the ICJ Statute Fared? . . . . . . . . . . . . . . . . . . . . . . . . . 455 Christian J. Tams The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461 Frank Hoffmeister The Aegean Conflict – An Unsettled Dispute in Turkey’s EU Accession Course

493

Oliver Dörr The European Court of Justice Getting in the Way: The Abortive MOX Plant Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Panel Discussion: Has International Law Civilized Conflicts since 1907? Remarks by Christine Chinkin, Christian Tomuschat and Natalino Ronzitti . . . . 509

List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

Prevention and Containment of War – Two Fateful Missions Unaccomplished By Thomas Giegerich1

A. Desperately Yearning for Peace – and Yet Incessantly Waging War Since times immemorial, humans have yearned for peace – and yet mercilessly waged war against and inflicted genocide upon each other. What is perhaps the most fundamental contradiction of human nature has been deplored and reforms have been devised and vainly tried for millennia.2 One particularly important and promising tool has long been international law, whose “father” Hugo Grotius was driven by the desire to limit, if not completely overcome, war when he was writing his seminal work on the law of war and peace in the midst of the Thirty Years War.3 As law forms the cornerstone of sovereign statehood which successfully eliminated anarchy and contained violence within societies in Europe, why should it not be useful in overcoming anarchy in international relations? One lesson to be learnt from the analogy to nation-building is, of course, that to be successful in making and maintaining peace, law must be backed by superior power. Humankind might after all have to realize that world peace, justice and prosperity requires effective world government.4 1

Revised and updated version of my opening statement on 9 November 2007. For many others see, e.g., the prophet Isaiah (Isaiah 2, 3–4); Erasmus of Rotterdam, Querela Pacis undique Gentium ejectae profligataeque, first published in 1516; Immanuel Kant, Zum ewigen Frieden: Ein philosophischer Entwurf, first published in 1795; Count Richard N. Coudenhove-Kalergi, Das Paneuropäische Manifest, 1923. Many historic peace treaties were concluded to establish perpetual peace, e.g., those of Münster and Osnabrück of 24 October 1648 whose respective Art. I proclaimed a Christian, universal and perpetual peace between the contracting sovereigns, Wilhelm G. Grewe (ed.), Fontes Historiae Iuris Gentium, vol. 2, 1988, 183, 188. 3 Hugo Grotius, De iure belli ac pacis libri tres, first published in 1625. 4 See Paul Kennedy, The Parliament of Man: The United Nations and the Quest for World Government, 2006, quoting from the 1837 poem “Locksley Hall” by Alfred, Lord Tennyson, who had envisioned the world’s distant future after further terrible wars: “Till 2

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A major intermediary on the way of humankind to limit war and build peace on a foundation of international legal rules were the Hague Peace Conferences of 1899 and 1907, in which all the major powers of that time participated. On the occasion of the Second Hague Conference’s 100th anniversary it seems apt to reflect on how far we have come and how we should proceed in our effort to prevent or at least contain war, in spite of the contradictions inherent in human nature. The city of Kiel with both its pacifist and belligerent traditions is certainly an appropriate place to enter into those reflections. From a small merchant town and minor member of the Hanse League, it developed into a ducal residence. In 1665, shortly after the end of the Thirty Years War, Duke Christian Albrecht of Holstein-Gottorf founded the University of Kiel under the motto “pax optima rerum” – peace is the best of all. Having been annexed by Prussia in 1866, Kiel became a major naval port and shipbuilding center. In 1913/1914, shortly before the outbreak of World War I, the Seminar (later Institute) for International Law, the first of its kind in Germany, was established at the University of Kiel. Its founder, Theodor Niemeyer, had for many years taught public international law to officers at the naval academy. That area of the law suddenly seemed politically important. Niemeyer believed in “the sociological necessity of international law, i.e. the application of the rule of law to the relations between States” and “that as long as State policy is determined by the will to power, there will be wars …” He added: “We are, however, firmly convinced of the progress and eventual victory of the idea of community, hence of the future of international law based on reason.”5 At the end of October 1918, when Germany had all but lost the Great War, the German navy was ordered to leave port for a final desperate attack on the British navy. As many sailors considered that as a senseless sacrifice, a mutiny erupted in Kiel which spread all over Germany within days, sweeping away the monarchy and leading to the armistice of 11 November 1918 and ultimately the democratic Republic of Weimar. In 1926, Walther Schücking, one of the few pacifists and internationalists among the public law professors in Germany, became director of the Kiel Institute for International Law. He thought that already the Hague Peace Conference of 1899 had implicitly created a world confederation. In 1919, the idealist Schücking the war-drum throbb’d no longer, and the battle-flags were furl’d/In the Parliament of man, the Federation of the world./There the common sense of most shall hold a fretful realm in awe,/And the kindly earth shall slumber, lapt in universal law.” 5 Theodor Niemeyer, Bericht über Aufgaben und Entwicklung [sic] des Instituts für Internationales Recht an der Universität Kiel, in: id., Einführung in das Völkerrechtsarchiv und die Bücherei, 1919, 4; see also 75 Years Institute of International Law, 1989, 5.

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co-drafted a German proposal for the League of Nations Covenant that included a renunciation of the jus ad bellum, a world parliament and compulsory settlement of all disputes, none of which made its way into the actual Covenant.6 When the Nazis came to power in 1933, they immediately deprived Schücking of his directorship and professorship. Fortunately, he had in 1930 been elected as a Member of the Permanent Court of International Justice in The Hague where he remained until his death in 1935. In World War II, Kiel, with its naval installations and shipyards, was a prime target for allied bombing raids and thus almost completely destroyed. But the Institute for International Law, which since 1995 bears Walther Schücking’s name, lives on and continues his pacifist traditions,7 although in a somewhat less idealistic way and luckily in a more conducive and receptive mental and political atmosphere.

B. The Hague Peace Conferences and their Impact on International Law When our ancestors met a hundred years ago at The Hague, the outbreak of the First World War was less than seven years away. It was to forestall such a cataclysm that the Hague Peace Conferences had been convened in the first place, “in the best interests of humanity.”8 At the end of the second Conference in 1907, it was so obvious that not everything necessary had been accomplished that a third peace conference was projected and actually even prepared since 1910.9 Unfortunately, that third meeting was never convened but overtaken by the catastrophe of a great war. The containment of World War I on land and at sea pursuant to the new rules agreed on in The Hague was practically largely unsuccessful, considering such means as the widespread use of poisonous gas and the unlimited submarine warfare, both German inventions.10 Both instances of “uncivilized” warfare

6

Martti Koskenniemi, The Gentle Civilizer of Nations, 2001, 215; see also in this volume Jost Delbrück, Walther Schücking’s Contribution to the International Rule of Law; Frank Bodendiek, Walther Schücking und Hans Wehberg – Pazifistische Völkerrechtslehre in der ersten Hälfte des 20. Jahrhunderts, Die Friedenswarte 74 (1999), 79. 7 See, e.g., Jost Delbrück (ed.), Friedensdokumente aus fünf Jahrhunderten, 2 volumes, 1984. 8 Final Act of the International Peace Conference of 29 July 1899. 9 Arthur Eyffinger, The 1907 Hague Peace Conference: The Conscience of the Civilized World, 2007, 212. 10 Id., A Highly Critical Moment: Role and Record of the 1907 Hague Peace Conference, Netherlands International Law Review (NILR) 54 (2007), 197, 225.

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were addressed by international agreements during the inter-war period, but only the prohibition of poisonous gas was generally adhered to in World War II. With regard to their immediate objective, namely to prevent the outbreak of war in Europe, the Hague Peace Conferences of 1899 and 1907 were obvious failures. But this is not true with regard to their long-term contribution to international law. They codified major parts of the jus in bello11 and touched at least some aspects of the jus ad bellum.12 In both respects, they laid the groundwork on which later generations could build. Does our generation better cultivate, develop and implement these foundations of the international community than our ancestors – are we wiser?13 The two Hague conferences primarily dealt with three separate but interlinked topics which I call “pillars”: firstly, the peaceful settlement of disputes, including by arbitration; secondly, the restriction of armaments and military budgets; and thirdly, the laws of war. The first two topics were aimed at preventing the outbreak of war, not by restricting the jus ad bellum in its substance,14 but by inducing states not to use their continuing war power and to limit the growth of their warmaking capacity. The third topic was intended to contain the brutality of war where its prevention had failed, in accordance with the basic principle that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.”15 Whereas the Conferences were successful with regard to the codification of the laws of war, where they could build on national regulations such as the Lieber Code16 and international foundations established on the initiative of Henry Du-

11

Hague Conventions II–IV of 1899; Hague Conventions IV–XIII of 1907, available at http://avalon.law.yale.edu/subject_menus/lawwar.asp. 12 See the Convention relative to the Opening of Hostilities (Hague Convention III) of 18 October 1907, according to which “hostilities … must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war” (Art. 1). On the Drago-Porter Convention, see note 14. 13 The question formulated in the title of the book was inspired by the title of Andrew Dickson White’s book “Seven Great Statesmen in the Warfare of Humanity with Unreason,” 1910. 14 With the exception of the Drago-Porter Convention (Convention II Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts) of 18 October 1907, available at http://avalon.law.yale.edu/20th_century/hague072.asp. 15 Art. 22 of the Regulations respecting the Laws and Customs of War on Land (Annex to the Hague II Convention of 1899 and the Hague IV Convention of 1907). 16 Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, of 24 April 1863, available at http://avalon.law.yale.edu/19th_century/ lieber.asp; Theodor Meron, Francis Lieber’s Code and Principles of Humanity, in: Jonathan

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nant,17 they were much less so with regard to the peaceful settlement of disputes and utterly foundered on limiting armaments. To my mind, three questions are particularly interesting and will run like a thread through our discussions: First, in which areas have the promises and perspectives of 1899 and 1907 remained unfulfilled and why? Secondly, in which areas has there been progress, in which other areas perhaps regression, particularly in view of the terrorist attacks of September 11, 2001? Thirdly, what are our prospects and how can we as international lawyers help shaping a promising future? This symposium does not focus on historical events. Rather, it uses the occasion of the 100th anniversary of the Second Hague Peace Conference to follow up on the then concerns and objectives. We want to look at the Hague legacy through the lens of today’s problems. This is why in the introduction Stephen C. Neff will try to connect the situation of 1907 with our present situation, following the fate of the “three pillars” of the Hague Conferences through the intervening decades:18 Has their relative importance changed, perhaps because states are nowadays more ready than they were 100 years ago to make binding commitments? Can we honestly claim to have advanced beyond what our ancestors could ever imagine? This will provide us with a solid historical basis for venturing a preliminary prognosis on how the three pillars will fare in the 21st century, each of them individually and in its relationship with the others. What are the prospects of further codification and, even more importantly, effective implementation? Has the “empire of law” in international relations and the age of international justice, which was already envisaged in the Preamble of both the 1899 and the 1907 Convention for the Pacific Settlement of International Disputes (Hague I), ultimately dawned?

C. The First Pillar of the Hague Legacy: Non-Proliferation and Disarmament “Non-Proliferation and Disarmament” is the topic which the First Hague Conference approached only cautiously, trying to curb the exorbitant growth of armaI. Charney et al. (eds.), Politics, Values and Functions: International Law in the 21st Century – Essays in Honor of Professor Louis Henkin, 1997, 249. 17 Primarily the (Geneva) Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864, reprinted in: Federal Foreign Office, German Red Cross and Federal Ministry of Defense (eds.), Documents on International Humanitarian Law, 2006, 13, also available at http://avalon.law.yale.edu/19th_century/ geneva04.asp; see J. Henry Dunant, Un souvenir de Solferino, first published in 1862. 18 The Hague Peace Conferences and a Century of Further Struggles, in this volume.

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ments and military budgets. The issue then was not yet arms reduction but only growth limitation, a freeze in effective armed forces and/or defense spending. But even that limited program yielded nothing but an appeal by the Conference to the governments in the Final Act to pursue the issue further. Progress seemed so elusive that the Second Hague Conference did not even seriously consider it any more. This may be surprising in view of the fact that restriction of armaments and military budgets had been the primary motive of the Russian Czar to initiate the conferences in the first place. Nicolas II could have cited Immanuel Kant who had a hundred years earlier identified the armament spiral as one of the major causes of war.19 In 1918, US President Woodrow Wilson would go further, making arms reduction one of his Fourteen Points,20 and from there it would enter Art. 8 of the League of Nations Covenant as a prerequisite for the maintenance of peace.21 No equivalent can be found in the UN Charter.22

I. Non-Proliferation of Weapons of Mass-Destruction and Nuclear Disarmament Today we face two different aspects of arms control, the first one relating to weapons of mass destruction, the second one to conventional weapons. The nonproliferation of weapons of mass destruction is an issue yet unknown in 1907, but is a serious concern today, especially in view of attempts by politically unstable or unreliable states and international terrorist organizations to get hold of such weapons. However, one should neither forget the elimination23 or at least reduction of

19

Kant (note 2), Art. 3 of the Preliminary Articles, according to which standing armies should gradually be abolished. 20 Henry Steele Commager/Milton Cantor (eds.), Documents of American History, vol. II, 10th ed. 1988, 137: Point 4. 21 The Covenant of the League of Nations of 28 June 1919, quoted from Malcolm D. Evans (ed.), Blackstone’s Statutes: International Law Documents, 8th ed. 2007, 1. 22 But see Art. 11 (1) and 26 of the Charter of the United Nations of 26 June 1945, UNTS, vol. 892, 119. Only the General Assembly has seriously worked for disarmament, not the Security Council, see Kay Hailbronner/Eckart Klein, in: Bruno Simma (ed.), The Charter of the United Nations: A Commentary, vol. I, 2nd ed. 2002, Art. 11, MN 9 et seq. 23 Biological and chemical weapons must be eliminated under the respective treaties, see Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 10 April 1972, UNTS, vol. 1015, 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993, UNTS, vol. 1974, 45.

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stockpiles24 by those states already possessing them. Ian Anthony introduces us to the regime of non-proliferation and reduction of nuclear, biological and chemical weapons.25 Two states have given cause for particular concern with regard to nuclear weapons, North Korea and Iran, whereas a third state, Libya, credibly renounced earlier moves to acquire weapons of mass destruction. North Korea in 1993 and definitively in 2003 gave notice of withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968 (NPT),26 based on Art. X (1). Since the latter date, negotiations (so-called Six-Party talks) have been taking place to induce North Korea to give up its nuclear ambitions. In Resolution 1718 (2006), adopted on 14 October 2006 after North Korea claimed to have conducted a nuclear weapons test, the UN Security Council demanded that North Korea return to the NPT and imposed limited sanctions under Chapter VII of the UN Charter. There is still hope that North Korea will ultimately follow the Libyan example. Iran presents a harder case. The country insists on continuing its nuclear program based on its inalienable international legal right to develop nuclear energy for peaceful purposes.27 The international community, however, considers this program, parts of which had long been concealed from the IAEO, as a threat to international peace and security. Negotiations between Iran and the five permanent members of the Security Council and Germany, supported by the EU High Representative for the Common Foreign and Security Policy, have not settled the matter. The Security Council’s imposition of limited sanctions, such as travel restrictions on Iranians involved in the country’s nuclear program, have not been effective either.28 The international community continues to pursue this dual-track approach 24

International legal commitments of nuclear weapons states do not go beyond reduction of stockpiles, see, e.g., the Strategic Arms Reduction Treaty Between the Soviet Union and the USA of 31 July 1991 (START I), available at http://www.state.gov/www/global/ arms/starthtm/start/toc.html; reduction and limitation of strategic offensive weapons; USSR-US Treaty on the Elimination of Their Intermediate-Range and Shorter Range Missiles of 8 December 1987(so-called INF Treaty), reprinted in International Legal Materials (ILM) 27 (1988), 84: elimination of certain categories of launchers capable of carrying nuclear warheads. 25 Weapons of Mass Destruction: Reduction of Stockpiles and Non-Proliferation, see in this volume. 26 UNTS, vol. 729, 161, reprinted in: German Federal Foreign Office (ed.), Preventing the Proliferation of Weapons of Mass Destruction: Key Documents (2nd ed. 2006), 1, available at http://www.auswaertiges-amt.de/diplo/de/Infoservice/Broschueren/Abruestung KeyDocuments.pdf; Anthony Aust, Modern Treaty Law and Practice, 2nd ed. 2007, 281. 27 Art. IV (1) of the NPT. 28 See, e.g., SC Res. 1803 of 3 March 2008.

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of negotiations and sanctions to the Iranian nuclear issue. But the rumor keeps running that Israel could, with the political and logistical support of the United States, opt for a show of force, destroying militarily the Iranian nuclear facilities, just as it had destroyed the construction site of a nuclear reactor in Osirak (Iraq) in 198129 and a suspicious facility in Syria in September 2007. Israel considers a nucleararmed Iran as a threat to its very existence. But if it invoked a right of preventive self-defense, it could (again) certainly not expect the support of the majority of states for this claim.30 In its Resolution 487 (1981) of 19 June 1981, the UN Security Council “strongly condemn[ed] the military attack by Israel [on the Osirak site] in clear violation of the Charter of the United Nations and the norms of international conduct.” In her comment, Heike Krieger takes up a specific problem of the NPT, namely the pactum de contrahendo in Art. VI on ending the nuclear arms race and achieving a complete disarmament.31 This part of the agreement has never been fully implemented, apart from the initial steps taken in the START and INF Treaties between the US and the former Soviet Union.32 Instead, the five permanent members of the UN Security Council have made unilateral commitments not to use their nuclear arsenals against non-nuclear states.33 What does that mean for the overall balance of commitments in the NPT? The proponents of nuclear disarmament, who were disappointed at the lack of progress in the framework of the NPT, succeeded in mobilizing the UN General Assembly: In 1994, based on Art. 96 (1) of the UN Charter, the latter requested the International Court of Justice to give an advisory opinion on the legality of the threat or use of nuclear weapons. By seven votes to seven, by the President Bedjaoui’s casting vote,34 the Court replied on 8 July 1996

29

See the documents in ILM 20 (1981), 963. Sean D. Murphy, Protean Jus ad Bellum, sub C. IV., in this volume; see also W. Michael Reisman/Andrea Armstrong, Claims to Pre-emptive Uses of Force, in: Michael N. Schmitt/Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein, 2007, 79; Mary Ellen O’Connell, Defending the Law against Preemptive Force, in: Andreas Fischer-Lescano et al. (eds.), Peace in Liberty. Festschrift für Michael Bothe, 2008, 237. 31 Disarmament Obligations of and Assurances of Non-Use by Nuclear Weapons States, in this volume. 32 See note 24. 33 The five statements of 5/6 April 1995 are reprinted in: German Federal Foreign Office (note 26), 98. 34 See Mohammed Bedjaoui, L’humanité en quête de paix et de développement (I), Recueil des Cours (RdC) 324 (2006), 9, 304 et seq., 364 et seq. 30

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that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake; …”35

But the Court emphasized that the importance of fulfilling the obligation expressed in Art. VI of the NPT “remains without any doubt an objective of vital importance to the whole of the international community today.”36 Recently, a group of elder statesmen proposed complete nuclear disarmament as the only reliable method to ensure non-proliferation. Prospects of success are, however, dim as long as even the Comprehensive Nuclear-Test-Ban Treaty37 cannot enter into force, because two major nuclear powers and permanent members of the Security Council, China and the US, have not ratified it. Christian Schaller deals with a very urgent recent problem – how to keep weapons of mass destruction from terrorists who would certainly not hesitate to actually use them.38 Perhaps the most prominent political response to that threat is the USsponsored Proliferation Security Initiative which is specifically designed to interdict the flow of WMD at sea, where the exclusive jurisdiction of flag states over their vessels on the high seas and of coastal states over their territorial sea pose serious impediments to interdiction efforts.39

II. Conventional Disarmament and Arms Trade The second important aspect of arms control is conventional disarmament. There, considerable progress has indeed been made since the adoption of the Con35

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 195. 36 Ibid., para. 103, referring to SC Res. 985 of 13 April 1995. 37 Comprehensive Nuclear-Test-Ban Treaty of 24 September 1996, reprinted in: German Federal Foreign Office (note 26), 19, also available at http://www.ctbto.org/ the-treaty/. 38 Keeping Weapons of Mass Destruction from Terrorists – An International Law Perspective, in this volume. 39 Proliferation Security Initiative: Statement of Interdiction Principles (4 September 2003), reprinted in: German Federal Foreign Office (note 26), 605, also available at http:// www.state.gov/t/isn/c27726.htm; Thomas Giegerich, Sicherheit auf See, in: Andreas Zimmermann/Christian Tams (eds.), Seesicherheit vor neuen Herausforderungen, Lorenz-vonStein-Institut für Verwaltungswissenschaften an der Christian-Albrechts-Universität zu Kiel, Arbeitspapier 84, 2008, 5.

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ventional Weapons Convention (CCW): Not only have certain types of conventional weapons, such as those producing non-detectable fragments, blinding laser weapons40 and anti-personnel mines,41 been completely prohibited with regard to the numerous parties to the relevant treaties, but we have also seen a considerable overall forces reduction in Europe – a peace dividend drawn from the end of the cold war. Recently, the history of the Ottawa Convention on Anti-Personnel Mines repeated itself mutatis mutandis in Dublin and Oslo. There, over 100 states participated in diplomatic conferences, being carried by a wave of popular support and again taking place outside the stalled Geneva CCW review process, and agreed on another milestone of conventional disarmament: the outlawing of cluster munitions.42 The proscription of both anti-personnel mines and cluster munitions is based on their potentially indiscriminate effect:43 They are capable of killing and maiming civilians long after the end of the armed conflicts in which they were used. Unfortunately, those states having at their disposal the largest stockpiles of those weapons, such as China, Russia and the US, are not among the signatories, but public opinion may ultimately induce them to join. On the other hand, the fate of the Treaty on Conventional Armed Forces in Europe44 is currently hanging in the balance because of US plans to deploy in the Czech Republic and Poland elements of a new generation of interceptors which 40

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 of 10 October 1980, UNTS, vol. 1342, 137, with five Protocols so far, e.g. Protocol I on Non-Detectable Fragments, Protocol IV on Blinding Laser Weapons, UNTS, vol. 1342, 168, reprinted in: Federal Foreign Office (note 17), 611. 41 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 18 September 1997 (Ottawa Convention), UNTS, vol. 2056, 211. 42 Convention on Cluster Munitions, adopted in Dublin on 30 May 2008, signed in Oslo on 3 December 2008, available at http://www.clustermunitionsdublin.ie/pdf/ENGLISHfinal text.pdf – not yet in force; see Priya Pillai, Adoption of the Convention on Cluster Munitions, American Society of International Law (ASIL) Insights, vol. 12, Issue 20, 1 October 2008; Karen Hulme, The 2008 Cluster Munitions Convention: Stepping Outside the CCW Framework (Again), International and Comparative Law Quaterly 58 (2009), 219. 43 Cf. Art. 51 (4) and (5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, UNTS, vol. 1125, 3, which define and prohibit indiscriminate attacks. It is uncertain whether the use of anti-personnel mines and cluster munitions, which were widely stockpiled and used until recently, is covered, cf. Art. 31 (3) lit. b of the Vienna Convention on the Law of Treaties of 22 May 1969, UNTS, vol. 1155, 331. 44 Treaty on Conventional Armed Forces in Europe of 19 November 1990, reprinted in: ILM 30 (1991), 6.

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are designed to destroy missiles fired off by so-called “rogue states.” In preparation of that deployment, the US withdrew from the ABM Treaty.45 Russia reacted by suspending its own participation in the CFE.46 In an era of globalization in which mutual distrust is widespread and warning times are short, perceived new threats to national security can at any time trigger arms build-ups and perhaps even lead to a militarization of space.47 The most catastrophic scenario would be the launch of pre-emptive strikes, e.g. by Israel or the US against Iran, which they accuse of secretly trying to build up a nuclear capacity that would threaten Israel’s very existence.48 Moreover, the projection of military power is still considered important for a nation’s standing in the world. It is therefore no wonder that some newly industrializing countries, like India and Pakistan, have acquired nuclear weapons and others, such as the People’s Republic of China, are considerably increasing their military spending, thereby wasting money they would urgently need for peaceful development. Last not least, there is no arms race without arms trade. Trade interests have so far put insurmountable obstacles in the way of a UN convention project which is intended to stem the flow of small arms into the many politically unstable regions of the world. Western states, including Germany, are among those profiting the most from the arms trade.49 Against this backdrop, Knut Dörmann informs us about the sometimes frustrating endeavors to agree on conventional disarmament and control the arms trade,50 while Christiane Höhn presents the issue from an EU perspective, which integrates trade interests and humanitarian concerns.51 There is a politically binding

45

Treaty Between the USA and the USSR on the Limitation of Anti-Ballistic Missile Systems of 26 May 1972, UNTS, vol. 944, 13, available at http://avalon.law.yale.edu/20th_ century/sov006.asp. 46 Duncan B. Hollis, Russia Suspends CFE Treaty Participation, ASIL Insights, vol. 11, Issue 19, 23 July 2007. 47 Götz Neuneck/André Rothkirch, The Possible Weaponization of Space and Options for Preventive Arms Control, Zeitschrift für Luft- und Weltraumrecht 55 (2006), 501. 48 See notes 29–30 and accompanying text. 49 “In 2005, the traditional big five arms-exporting countries – Russia, the USA, France, Germany and the UK – still dominated global sales of major conventional weapons, with an estimated 82 per cent of the market,” see the report of the Control Arms Campaign, Arms Without Borders, October 2006, available at http://www.controlarms.org/en/documents% 20and%20files/reports/english-reports/arms-without-borders. 50 Conventional Disarmament – Nothing New on the Geneva Front?, in this volume. 51 International Humanitarian Law in the EU’s Common Foreign and Security Policy, in Particular the EU Code of Conduct on Arms Exports, in this volume; see also Zeray

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EU Code of Conduct for Arms Exports to third states whose effectiveness needs to be examined. The European Parliament has so far been unsuccessful with its proposal to transform the Code into a legally binding common position pursuant to Art. 15 of the EU Treaty, but does that matter? Or are political (“soft law”) commitments at least as effective to ensure that arms trade does not contribute to international aggression, internal repression or regional instability, and to promote international humanitarian law? With regard to arms purchases, EU member states are also subject to Community law obligations. This is made apparent by actions concerning imports of defense equipment which were brought by the Commission against seven member states, including Germany, and are currently pending before the ECJ. They raise the question whether the defendants infringed their obligations arising from the Community Customs Code by failing to credit the Community own resources account with the amounts corresponding to the customs duties on those imports. The Advocate General has proposed that the Court find for the Commission, even though Art. 296 of the EC Treaty protects member states’ national security interests.52 This indicates once more how closely integrated the EU has become, if compared with the international community as a whole.

D. The Second Pillar of the Hague Legacy: Codifying, Developing and Enforcing International Humanitarian Law The second part of our conference this afternoon and tomorrow morning will be devoted to the achievements of the Hague Conferences with regard to humanitarian law and its ups and downs during the past one hundred years. Among the ups one would certainly count the four 1949 Geneva Conventions Relating to the Protection of Victims of Armed Conflict and the two Additional Protocols of 1977, among the downs – closer to the present – certainly the widespread and systematic abuse of prisoners by the US in the Abu Ghraib and Guantánamo detention centers. We undoubtedly share with our ancestors “the desire to diminish the evils of war so far as military necessities permit,”53 but how far have we really come in the process of balancing humanitarian concerns and military requirements in the past Yihdego, The EU’s Role in Restraining the Unrestrained Trade in Conventional Weapons, German Law Journal 10, No. 3 (2009), 281. 52 Opinion of 10 February 2009 in the Joined Cases C-284/05 etc., available at http:// curia.europa.eu/de/transitpage.htm (but not yet in English). 53 Preamble of the Hague II Convention of 1899. The formulation in the Preamble of the Hague IV Convention of 1907 is almost identical.

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century? Can one even detect a general humanization of international law, in the sense of a reforming effect which international humanitarian law together with international human rights law has had on the whole international legal order?54

I. Excursion into the Jus ad Bellum and Jus post Bellum Sean D. Murphy’s piece on the jus ad bellum in view of new security threats I smuggled into the part on the jus in bello,55 in spite of the traditional dichotomy between the two bodies of international law.56 The Hague Conferences at least touched the jus ad bellum, and it is obviously closely related to the jus in bello in legal and political terms: To make international humanitarian law applicable, an armed conflict must have been started, no matter whether pursuant or contrary to the jus ad bellum rules. It also seems that the readiness of states to “extend” their jus ad bellum often goes hand in hand with an inclination to apply the jus in bello restrictively, as, in a way, the curse of the evil deed. We must, however, never forget that international humanitarian law, limiting the means by which belligerents may injure the enemy,57 predates by far the international legal rules trying to save mankind from the scourge of war as such. Each of the two bodies of international law represents a major progress and has an important and distinctive role to play in our common struggle with “man’s inhumanity to man.”58 We should therefore not permit states to play one off against the other.59 According to the UN Charter, we are now living in an age in which armed force must not be used nor threatened, save in the common interest.60 States have all but lost their jus ad bellum, which a hundred years ago was considered as the most distinguished badge of sovereignty, and only kept their inherent right of individual or collective self-defense, subject to the responsibility and decision-making power

54

Theodor Meron, The Humanization of International Law, 2006. Protean Jus ad Bellum (note 30). 56 See the contributions to the panel on “The Relationship between Jus ad Bellum and Jus in Bello: Past, Present, Future,” ASIL Proceedings 2006, 109. 57 Cf. Art. 22 of the Regulations Respecting the Laws and Customs of War on Land (note 15). 58 Cf. Lal Chand Vorah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese, 2003. 59 Robert D. Sloane, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War, The Yale Journal of International Law 34 (2009), 47. 60 Para. 7 of the Preamble of the UN Charter. 55

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of the Security Council.61 Nowadays, it is therefore more apt to speak of jus contra bellum as the rule and jus ad bellum as the narrow exception. In the real world, however, the Security Council has never been able to assert and enforce its own war power monopoly. In reaction to the deficient collective security system of the UN and in view of new security threats, some states have tried to extend their remaining jus ad bellum, e.g. by invoking a right of preventive self-defense to forestall a future armed attack.62 Other states have gone beyond the protection of selfish national interests in claiming a right of humanitarian intervention without Security Council authorization, e.g. the NATO members with regard to the Kosovo,63 or Russia with regard to South Ossetia.64 It remains to be seen whether the International Court of Justice will pronounce on the legality of either military intervention. Actions brought in 1999 by Yugoslavia (Serbia and Montenegro) against ten NATO members were all dismissed by the Court for lack of jurisdiction.65 Now, however, a related request by the UN General Assembly for an advisory opinion is pending at the ICJ.66 With regard to South Ossetia, Georgia, in August 2008, instituted proceedings against the Russian Federation.67 The past crimes against humanity committed in Bosnia and Herzegovina and Rwanda, and the present atrocities in Darfur and the Congo bring up the question whether the right to use armed force may in extreme cases turn into an outright duty incumbent on the UN, a regional organization or even individual states. Have these incidents once and for all proved pacifism wrong? Or is the taking of lives for the sake of saving lives still legally wrong and morally reprehensible? In the 2005 World Summit Outcome, the Heads of State and Government of the UN member states declared their readiness to make use of Chapter VII powers if necessary,68 but that has not yet helped the victims in either Darfur or the Congo. The international community is extremely reluctant to permit non-peaceful humanitarian interventions by individual states or “coalitions of the willing” without a Secu-

61

Art. 2 (4), 51 UN Charter. See note 29 and accompanying text. 63 See Editorial Comments: NATO’s Kosovo Intervention, American Journal of International Law (AJIL) 93 (1999), 824; Christian Tomuschat (ed.), Kosovo and the International Legal Community: A Legal Assessment, 2002. 64 Angelika Nussberger, Völkerrecht im Kaukasus – Postsowjetische Konflikte in Russland und Georgien, Europäische Grundrechtezeitschrift (EuGRZ) 35 (2008), 457, 464 et seq. 65 See, e.g., Legality of Use of Force (Serbia and Montenegro v. Germany), Preliminary Objections, Judgment, 15 December 2004, ICJ Reports 2004, 720. 66 See note 134 and accompanying text. 67 See note 198 and accompanying text. 68 GA Res. 60/1 of 16 September 2005, para. 139. 62

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rity Council mandate, which is hard to obtain. In her comment, Christine Gray suggests that this should be welcomed by supporters of the rule of law.69 Another related issue is the failure of states, because anarchy often threatens international peace and security, causes violations of human rights and humanitarian law and triggers the responsibility to protect. State failures usually go along with international and/or non-international armed conflicts and raise serious jus ad bellum and jus in bello problems. That became apparent, e.g. in Somalia and Afghanistan.70 The phenomenon has led not only to a rise of international terrorist attacks, but also to a resurgence of piracy which threatens to interrupt traffic in the vitally important sea lane through the Red Sea and Suez Canal.71 The international community thus obviously has a fundamental interest in preventing state failures and rebuilding failed states. Kirsten Schmalenbach comments on these problems which were not yet an issue in 1907.72 Today, we are speaking of rules on peacebuilding as part of a jus post bellum.73 Many of the weak or failing states of today are former colonies of one of the contracting parties of the Hague Conventions of 1907, and there is reason to believe that the consequences of European colonization, which had its heyday back then, are important factors contributing to state failures.

II. Outsourcing War – The Resurgence of Private Military Contractors Another modern phenomenon is the outsourcing of war, one aspect of the recent trend to privatize state functions for the sake of efficiency and effectiveness. It means that states are increasingly using private military contractors to provide them with services on or at least close to the battlefield.74 This trend evokes the 69

The International Community’s “Responsibility to Protect” Populations from War Crimes and Other International Crimes, in this volume. 70 Robin Geiss, Failed States – Legal Aspects and Security Implications, German Yearbook of International Law (GYIL) 47 (2004), 457. 71 See SC Res. 1846 of 2 December 2008 and 1851 of 16 December 2008, determining that the incidents of piracy (in the sense of Art. 101 of the UN Convention on the Law of the Sea of 10 December 1982, UNTS, vol. 1833, 3) and armed robbery in the waters off the coast of Somalia constitute a threat to international peace and security in the region; see also Eugene Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, ASIL Insights, vol. 13, Issue 2, 6 February 2009, available at www.asil.org. 72 Preventing and Rebuilding Failed States, in this volume. 73 Carsten Stahn, Jus Post Bellum: Mapping the Discipline(s), in: id./Jann K. Kleffner (eds.), Jus Post Bellum. Toward a Law of Transition From Conflict to Peace, 2008, 93. 74 Nicki Boldt, Outsourcing War – Private Military Companies and International Humanitarian Law, GYIL 47 (2004), 502; see also the various contributions to the Symposium:

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memories and the problems of the mercenary wars in the 16th and 17th century, problems that seemed to be long overcome by 1907 when sovereign states waged war with their well-disciplined standing armies. How do private military contractors fit in the humanitarian law? The employees of today’s private military contractors hardly ever fulfil the cumulative conditions of the strict definition of “mercenaries” in Art. 47 (2) of Protocol I:75 They are not specially recruited to fight in one specific armed conflict (lit. a), their essential monetary motivation (lit. c) is difficult to prove, their nationality can easily be changed (lit. d) and they can as easily be included in a state’s armed forces (lit. e) if necessary.76 Usually, private military personnel qualifies as “civilians” and are thus both prevented from directly participating in hostilities and protected by Convention (IV) Relative to the Protection of Civilian Persons in Time of War.77 On the other hand, under the international legal rules on the attribution of conduct,78 states can certainly not completely evade their international legal obligations by outsourcing governmental functions.79 When private military companies exercise elements of public authority or their conduct is directed or controlled by a state, which is not always the case, that state will be internationally responsible for their actions. If a state does not duly control its contractors who then violate international humanitarian or human rights law, this failure to exercise due diligence may amount to a breach of the state’s protective duty and its international responsibility can be established on that basis. But responsibility gaps remain if compared with ordinary military personnel covered by Art. 3 of the Convention Respecting the Laws and Customs of War on Land (Hague IV).80

Private Military Contractors and International Law, European Journal of International Law ( EJIL) 19 (2008), 961. 75 Protocol I (note 43); see also Art. 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989, UNTS, vol. 2163, 75. 76 Boldt (note 74), 532. 77 Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS, vol. 75, 287. 78 Cf. Arts. 4–11 of the Articles on Responsibility of States for Internationally Wrongful Acts, UN GA Res. 56/83 of 12 December 2001, Annex, which reflect customary international law. 79 Katja Nieminen, The Rules of Attribution and the Private Military Contractors at Abu Ghraib: Private Acts or Public Wrongs, Finnish Yearbook of International Law 15 (2004), 289. 80 Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies, EJIL 19 (2008), 989.

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The exponential growth of the private military and security industry in recent years81 and the many legal uncertainties surrounding it has prompted the Parliamentary Assembly of the Council of Europe into action. It recently adopted a recommendation “Private military and security firms and the erosion of the state monopoly on the use of force.”82 It there explained that in view of the fact that many of the challenges arising from the increasing role of private military and security companies (PMSCs) reach the core of the values protected by the Council of Europe, the latter had particular responsibilities in addressing the issue of regulating activities of PMSCs on the basis of common principles. The Parliamentary Assembly emphasized that states should make every effort to retain and regain full control over the activities of PMSCs … in order to avoid and, as the case may be, reverse the erosion of the states’ monopoly on the exercise of force. It is at least necessary and possible to create an adequate framework for their activities in such a way, that they are performed in compliance with the basic principles of democracy, respect for human rights and the rule of law … PMSC’s personnel and their employers are bound first and foremost by the law … of the country in which they operate, as well as by general provisions of international humanitarian law. They are also bound by provisions of human rights law, insofar as they perform tasks which are normally performed by state actors. However, there are multiple difficulties in applying these provisions in practice … As the PMSCs often operate internationally and these activities have transnational aspects and consequences, there is a clear need to regulate such activities at the international level.

Having discovered that there were no specific legal instruments under existing international law that explicitly regulate such activities, the Parliamentary Assembly recommended that the Committee of Ministers draw up a Council of Europe instrument aimed at regulating the relations of its member states with PMSCs and laying down minimum standards for the activities of these private companies. Preferably, these regulations should have the form of a legally binding convention, but prior to drafting such a convention, the Committee of Ministers could also adopt a recommendation to the member states. The Assembly further recommended that, in the meantime, the Committee of Ministers support the “Montreux Document” which sums up legal obligations under existing international law and best practices related to PMSCs’ activities, and call on member states that have not already done so, to endorse it. The aforementioned “Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military

81

It is estimated that currently more than a million employees work as private soldiers or security officers for over one thousand private military and security companies in over one hundred countries. The turnover of the industry may be as high as 200 billion US dollars. 82 Recommendation 1858 (2009), available at http://assembly.coe.int/main.asp?Link=/ documents/adoptedtext/ta09/erec1858.htm.

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and Security Companies during Armed Conflict” of 17 September 200883 is based on an initiative launched cooperatively by the Swiss Government and the International Committee of the Red Cross. It was developed with the participation of governmental experts from many countries and after consultation with representatives of civil society and of the private military and security industry. While the “Montreux Document” provides a thorough survey of existing legal obligations of states and private military and security companies, it is not a legally binding document in its own right. As private military and security companies increasingly operate transnationally, the issue of human rights implementation vis-à-vis transnational corporations also comes in.84

III. Avoiding Legal “Black Holes” – Bringing in International Human Rights Law and International Criminal Law It was a great progress a hundred years ago when the major powers agreed that even in the utmost of emergencies, in war, there were legal constraints, that “[t]he right of belligerents to adopt means of injuring the enemy [was] not unlimited.”85 This was intended to be an objective obligation of states and not to confer individual rights on the victims of war. And yet, the humanitarian law codified at The Hague became one important source of modern human rights law. International humanitarian law and international human rights law thus seem to be natural allies in the fight of humanity against barbarism. Recently, however, there have been attempts to turn them into enemies of each other.

1. Preserving the “Empire of Law” Some states have adopted the logic of warfare instead of law enforcement in their struggle against terrorist crimes, so as to relieve themselves of their human rights obligations in favor of the less restrictive rules of humanitarian law. In a second step, they try to avoid even those rules by denying international terrorist suspects the status of both combatants and civilians, creating for them a third cate-

83

Available at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/montreux-document170908. 84 See Christiana Ochoa, The 2008 Ruggie Report: A Framework for Business and Human Rights, ASIL Insights, vol. 12, Issue 12, 18 June 2008. 85 Art. 22 of the Regulations Respecting the Laws and Customs of War on Land (note 15).

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gory of “unlawful combatants” and thereby making them complete outlaws.86 This is a slippery slope, leading to “enforced disappearance” in secret prisons,87 torture,88 extraordinary renditions89 and ultimately into a lawless world.90 While international law knows “unlawful combatants,” it does not place them in a third category of outlaws but treats them as civilians.91 Fortunately, the “empire of the law”92 has meanwhile reclaimed lost territory – in the courts,93 official documents94 86

See, e.g., Response of the United States to Request for Precautionary Measures – Detainees in Guantanamo Bay, Cuba, ILM 41 (2002), 1015; but see Knut Ipsen, Combatants and Non-Combatants, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 2nd ed. 2008, MN 302. 87 On 20 December 2006, the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance, which is to apply even in a “state of war,” A/RES/61/177, Annex, Art. 1 (2). The Convention is not yet in force. 88 Jack L. Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration, 2007; Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, 2008. 89 See European Commission for Democracy through Law (Venice Commission), Opinion No. 363/2005 of 18 March 2006: International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, Human Rights Law Journal 27 (2006), 122; Parliamentary Assembly of the Council of Europe, Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, Resolution 1507 (2006) of 27 June 2006, para. 8: “The Assembly condemns the systematic exclusion of all forms of judicial protection and regrets that, by depriving hundreds of suspects of their basic rights … the United States has done a disservice to the cause of justice and has tarnished its own hard-won reputation as a beacon of the defence of civil liberties and human rights,” http://assembly.coe.int/ Mainf.asp?link=/Documents/AdoptedText/ta06/ERES1507.htm . 90 Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, 2005. 91 Judith Wieczorek, Unrechtmäßige Kombattanten und humanitäres Völkerrecht, 2005. 92 The Convention for the Pacific Settlement of International Disputes (Hague I) of 18 October 1907 was concluded by the states parties “[d]esirous of extending the empire of the law and of strengthening the appreciation of international justice,” para. 4 of the preamble, available at http://avalon.law.yale.edu/20th_century/pacific.asp. 93 See, e.g., A and Others v. Secretary of State for the Home Department, Opinions of the House of Lords, 16 December 2004, [2004] UKHL 56, and 8 December 2005, [2005] UKHL 71, available at http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm; A and Others v. UK (Application No. 3455/05), European Court of Human Rights, Grand Chamber Judgment of 19 February 2009; and Boumediene v. Bush, US Supreme Court, 12 June 2008, 553 U.S.¶(2008), available at http://www.supremecourtus.gov/opinions/07pdf/061195.pdf. 94 Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of 11 September 2001, US Department of Justice, Office of Legal Counsel, Memorandum

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and the minds of responsible politicians. In reaction to the bitter divisions within the EU in connection with the Iraq War, Art. 21 (1) of the Treaty on European Union, as amended by the Treaty of Lisbon of 13 December 2007, expressly confirms: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law …”95 In his Inaugural Address, US President Barack Hussein Obama said on 21 January 2009: “As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers – (applause) – our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man – a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake (Applause).”96 In this context, the “targeted killing” of suspected terrorists is worth mentioning – a practice which both Israel and the United States have openly employed and which – leaving aside the jus ad bellum issue, where the “target” is hit in the territory of a third state – raises questions of both international humanitarian law and international human rights law. The first significant judicial contribution to answering them came from the Supreme Court of Israel.97 This court imposed legal restrictions which may be considered as too lenient.98 More important, however, is the court’s insistence that “[e]very struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always

for the Files, January 15, 2009, available at http://www.usdoj.gov/opa/documents/memo statusolcopinions01152009.pdf. 95 Official Journal of the EU 2008 C 115/1 – not yet in force. 96 Available at http://www.whitehouse.gov/blog/inaugural-address/; see also the new US President’s Executive Order “Ensuring Lawful Interrogations”, 22 January 2009, available at http://issuu.com/i.l.m./docs/executive_order_-_lawful_interrogations. 97 Public Committee against Torture in Israel v. Government of Israel, Supreme Court of Israel Sitting as the High Court of Justice, Judgment of 13 December 2006, Case No. HCJ 769/02, available in English at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/ 02007690.a34.pdf. 98 Helen Keller/Magdalena Forowicz, A Tightrope Walk between Legality and Legitimacy: An Analysis of the Israeli Supreme Court’s Judgment on Targeted Killing, Leiden Journal of International Law 21 (2008), 18; Nils Melzer, Targeted Killing in International Law, 2008; but see Nils Melzer, Targeted Killing or Less Harmful Means?, Yearbook of International Humanitarian Law 9 (2006), 87.

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law which the state must comply with. There are no ‘black holes’ …”99 While primarily relying on international humanitarian law, the Supreme Court of Israel recognized that when there was a gap (lacuna) in that law, it could be supplemented by human rights law.100 The International Court of Justice has stated quite generally that the two legal regimes are not mutually exclusive but apply in parallel with each other.101 But what is their exact relationship? Dagmar Richter presents us her views on this thorny issue, taking into consideration the relatively limited extraterritorial effects of international human rights.102 One area where both bodies of rules expressly overlap is “child soldiers”:103 International humanitarian law was the first to protect the human rights of children by limiting their recruitment and use in hostilities.104 Later, international human rights law fell in tune and gradually developed ever stricter rules on the universal105 and regional level,106 whose importance was stressed by the Security Council.107 The seriousness of the international community in combating the exploitation of children as “war machines” has been underlined by the Rome Statute of the International Criminal Court:108 According to Art. 8 (2) lit. b (xxvi) and lit. e (vii), conscripting or enlisting children under the 99

Public Committee against Torture in Israel v. Government of Israel (note 97), para.

61. 100

Ibid., para. 18. Legality of the Threat or Use of Nuclear Weapons (note 35), paras. 24 et seq.; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, paras. 102 et seq. 102 Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres?, in this volume. 103 Matthew Happold, Child Soldiers in International Law, 2005. 104 Art. 77 of Protocol I (note 43); Art. 4 (3) lit. c of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II) of 8 June 1977, UNTS, vol. 1125, 609. 105 See the development starting with Art. 38 (2), (3) of the Convention on the Rights of the Child of 20 November 1989, UNTS, vol. 1577, 3 (with 193 parties), continuing with ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 17 June 1999, UNTS, vol. 2133, 161 (especially Art. 3 lit. a and d – with 169 parties), and culminating in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 20 May 2000, A/RES/54/263 (with 126 parties). 106 Art. 22 (2) of the African Charter on the Rights and Welfare of the Child of 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), available at http://www.africa-union.org/child/ home.htm. In Africa, the recruitment and use of child soldiers is particularly common. 107 SC Res. 1612 of 26 July 2005. 108 Rome Statute of the International Criminal Court of 17 July 1998, UNTS, vol. 2187, 3. 101

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age of fifteen years into armed forces or groups or using them to participate actively in hostilities in international and non-international armed conflicts is a war crime for both state officials and functionaries of organized armed groups. One pertinent case is currently being tried by the International Criminal Court.109 It should also be noted that calling child soldiers themselves to account for crimes they committed raises very difficult questions, because they are victims rather than perpetrators.110 In his comment, Rainer Hofmann adds another perspective to the problem: If violations of human rights and humanitarian law cannot be prevented, is there at least a remedy in the form of compensation for the victims?111 Even though this question has been intensively discussed only recently, particularly with regard to Art. 14 of the UN Convention Against Torture,112 we already find a provision on liability in Art. 3 of the Hague IV Convention Respecting the Laws and Customs of War on Land of 18 October 1907: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” This provision, however, seems to envisage only state-to-state claims arising under the customary law of state responsibility, and not individual claims.113 Victims of violations of international humanitarian law have nonetheless tried to obtain redress in the national courts of various countries, in spite of the immunity for sovereign acts which customary international law accords the perpetrator states.114 Some of those whose suits were dismissed by national courts filed

109

The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06) which concerns the recruitment and use of child soldiers by the Patriotic Forces for the Liberation of Congo. 110 Leena Grover, Trial of the Child Soldier: Protecting the Rights of the Accused, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 65 (2005), 217. 111 Can Victims of Human Rights Violations Claim Damages?, in this volume. 112 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, UNTS, vol. 1465, 85; see, e.g., Bardo Fassbender, Can Victims Sue State Officials for Torture?, Journal of International Criminal Justice 6 (2008), 347. 113 See in this sense German Federal Constitutional Court, decision of 15 February 2006, 2 BvR 1476/03, English translation in: International Law Reports 135 (2009), 186. See also Thomas Giegerich, Another Incoming Tide? Tort Liability in Public International Law, in: Aurelia Colombi Ciacchi et al. (eds.), Haftungsrecht im dritten Millennium: Liber amicorum für Gert Brüggemeier, 2009, 577. 114 Thomas Giegerich, Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?, in: Christian Tomuschat/ Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order. Jus Cogens and Obligations Erga Omnes, 2006, 203.

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individual applications with the European Court of Human Rights, but to no avail.115 The Italian courts have, however, adjudicated various individual compensation claims against Germany in respect of atrocities committed by German occupation forces against Italians during the Second World War. While Germany admits those atrocities, it does not consider the Italian courts as the proper fora to decide about individual claims arising there from. Germany has therefore instituted proceedings against Italy in the International Court of Justice on the basis of Art. 1 of the European Convention for the Peaceful Settlement of Disputes.116 It has requested the ICJ to declare that Italy “by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II … to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law …”117 Italy has declared that it would welcome an ICJ ruling on these issues.

2. Combatting Impunity – Then and Now The discovery that impunity for serious violations poses the gravest threat to the effectiveness of international humanitarian law and human rights law is not new. “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” This passage from the judgment of the Nuremberg International Military Tribunal of 30 September/1 October 1946118 stated a truth which had already been obvious to the victors of World War I who therefore included Part VII “Penalties” (Arts. 227–230) in the Versailles Peace Treaty.119 Art. 227 envisaged an international tribunal to try the former German Emperor “for a 115 See, e.g., Poznanski et al. v. Germany (Application No. 25101/05), European Court of Human Rights, Decision of 3 July 2007; Associazione Nazionale et al. v. Germany (Application No. 45563/04), Decision of 4 September 2007; in both cases, which concern victims of forced labor imposed by Germany during World War II, the applications were declared inadmissible. 116 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, ETS No. 23, available at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8& CL=ENG. 117 Proceedings instituted by the Federal Republic of Germany against the Italian Republic (Germany v. Italy), pending since 23 December 2008. 118 In the part “The Law of the Charter,” available at http://avalon.law.yale.edu/subject_ menus/judcont.asp. 119 Available at http://www.firstworldwar.com/source/versailles227-230.htm.

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supreme offence against international morality and the sanctity of treaties,” which never convened because the neutral Netherlands, not being a party to the Treaty of Versailles, refused to extradite Wilhelm II, who lived there in exile.120 In Art. 228, Germany reluctantly recognized the right of the Allied and Associated Powers to try and punish persons accused of having committed acts in violation of the laws and customs of war before military tribunals. As a matter of fact, however, the Allied and Associated Powers did not insist on extradition of German suspects but agreed that they should instead be tried by the German Supreme Court (Reichsgericht), whereas they refused to prosecute any of their own war criminals.121 The Germans countered by making no serious effort to call the German suspects to account. This experience induced the main victorious powers of World War II to take the prosecution and trial of the major German war criminals into their own hands by establishing the International Military Tribunal in Nuremberg. The effects can be felt until today: While the Rome Statute expressly provides that the International Criminal Court shall be “complementary to national criminal jurisdictions,” this complementarity does not prevent it from exercising jurisdiction where the state having jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution.122 Today, it is well established that the international rule of law cannot be guaranteed without international criminal law and international criminal tribunals. However, not all states have yet accepted that their military and civilian officials too should be subject to the jurisdiction of the ICC.123

IV. Belligerent Occupation and International Territorial Administration Another part of international humanitarian law deals with belligerent occupation of foreign territory, which is extensively regulated by Arts. 42–56 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague II Convention of 1899 and the Hague IV Convention of 1907. The importance of this area of the law was brought home to the broader public when forces of the 120

Wilhelm G. Grewe (ed.), Fontes Historiae Iuris Gentium, vol. 3/2, 1992, 730. Gerd Hankel, Die Leipziger Prozesse, 2003; Harald Wiggenhorn, Verliererjustiz: Die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg, 2005. 122 Art. 1, 17 of the Rome Statute. 123 The US, e.g., which had signed the Rome Statute on 31 December 2000, informed the UN Secretary-General on 6 May 2002 that it did not intend to become a party to the Statute, Multilateral Treaties Deposited with the Secretary-General, Chapter XVIII, No. 10, note 8, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=373& chapter=18&lang=en#8. 121

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“coalition of the willing” occupied Iraq in 2003. Ralph Wilde revisits the law of belligerent occupation and informs us about the political and economic rights and duties of occupying powers.124 Can they award the contracts for rebuilding works to their own nationals? To what extent may they influence the constitution-making process without infringing the right of self-determination of the respective people? Israel has of course had more than four decades of experience with occupying foreign territory in the West Bank and Gaza Strip. Is such a long occupation illegal per se? What obligations does an occupying power have with regard to the political, economic and financial stability of the territory when it ultimately intends to withdraw? Eyal Benvenisti introduces us to the art of ending prolonged occupation.125 Today, in February 2009, it is questionable whether the Israeli withdrawal from the Gaza Strip in 2005 has definitely brought the occupation of that territory to an end.126 It certainly has not ended Israel’s armed conflict with Palestinian organizations domiciled there, in particular the Hamas, which keeps firing rockets into southern Israel, nor the plight of the Palestinian population who suffer from the “Israeli siege imposed on the occupied Gaza Strip … [which] constitutes collective punishment of Palestinian civilians and leads to disastrous humanitarian and environmental consequences.”127 The recent Israeli military operation in the Gaza Strip “has resulted in massive violations of the human rights of the Palestinian people and systematic destruction of Palestinian infrastructure …”128 History seems to repeat itself: The first Lebanon war, which left the southern part of that country occupied by Israel until May 2000, led to the rise of the Hesbollah organization which fired rockets into northern Israel, provoking Israel to start the second Lebanon war in the summer of 2006.129 Beyond belligerent occupation, a new form of international territorial administration has developed, e.g. in East Timor and Kosovo.130 There the UN, usually 124 From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers, in this volume. 125 The Law on the Unilateral Termination of Occupation, in this volume. 126 The UN General Assembly’s Human Rights Council in its Resolution A/HRC/S9/L.1 of 12 January 2009 speaks of “the occupied Gaza Strip.” 127 Ibid., preamble. The Resolution was passed by a vote of 33:1, with 13 abstentions. 128 Ibid., para.1. 129 Andreas Zimmermann, The Second Lebanon War: Jus ad bellum, jus in bello and the Issue of Proportionality, Max Planck Yearbook of United Nations Law (Max Planck UNYB) 11 (2007), 99. 130 Markus Benzing, Midwifing a New State: The United Nations in East Timor, Max Planck UNYB 9 (2005), 295; Jürgen Friedrich, UNMIK in Kosovo: Struggling with Uncertainty, ibid., 225.

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supported by regional organizations, engages in rebuilding after international or non-international armed conflicts. To a certain extent, this reminds of the League of Nations’ mandate system and the UN’s trusteeship system which seemed to have become obsolete with the end of the decolonization process. Both systems were based on the conception that some peoples needed to be placed under the political trusteeship of more advanced nations because they were not yet able to govern themselves.131 Gregory H. Fox pursues the question whether international territorial administration leads us back toward neo-colonial trusteeship, or where else it might lead us.132 Quite practically, it tends to strengthen existing independence movements and therefore usually results in demands for independent statehood. These are sometimes implemented unilaterally and against the will of the territorial sovereign, as in the case of Kosovo, where the UN administration was established after a humanitarian intervention by NATO member states without a Security Council mandate. The potentially destabilizing effects of secessions on an international system dominated by states which all share a profound interest in preserving their territorial integrity have not unexpectedly provoked resistance to Kosovo’s unilateral declaration of independence. According to the UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, the principle of equal rights and self-determination of peoples shall not “be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.”133 Not even the EU member states could agree on a common position, 22 of them recognizing Kosovo as a sovereign state and the other five refusing to do so.134 Fortunately, the international community has found a civilized method to clarify the difficult issues of international law involved. On 8 October 2008, the UN General Assembly, invoking Art. 96 of the UN Charter and Art. 65 of the ICJ Statute, requested the International Court of Justice to “render an advi131

Art. 22 (1) of the Covenant of the League of Nations; Art. 76 lit. b of the UN Charter. Nele Matz, Civilization and the Mandate System under the League of Nations as Origin of Trusteeship, Max Planck UNYB 9 (2005),47. 132 A Return to Trusteeship? A Comment on International Territorial Administration, in this volume. 133 GA Res. 2625 (XXV) of 24 October 1970. 134 Peter Hilpold, Das Kosovo-Problem – ein Testfall für das Völkerrecht, ZaöRV 68 (2008), 779.

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sory opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”135 As an initial question, the ICJ will probably scrutinize the disputed legality of NATO’s military intervention.

V. The International Committee of the Red Cross: Humanizing Armed Conflicts through Law and Silent Diplomacy When talking about international humanitarian law we must not forget the role of the International Committee of the Red Cross which is sometimes neglected because the Committee prefers silent diplomacy. Robert Heinsch gives us a survey of how the Committee is involved in today’s international and non-international armed conflicts.136 In his subsequent comment, Walter Kälin takes up a specific contribution which the ICRC made to the containment of war,137 namely its recent compilation of the customary rules of humanitarian law in two volumes.138 It is perhaps small wonder to see the US Government arguing that the compilation portrayed some rules as being too restrictive, a position that again drew critical reactions.139 In an area like international humanitarian law with its comprehensive system of treaties, customary international law mainly has to fill in gaps, substantive gaps, but also gaps resulting from the non-ratification of certain treaties by certain states. Such gaps are today most likely to occur with regard to asymmetric conflicts between states and international terrorist organizations such as the Taliban or AlQaida which are, of course, not parties to any treaty and whose international legal personality needs to be thoroughly examined.140 Our ancestors were already well 135

GA Res. 63/3 of 8 October 2008, initiated by Serbia, was adopted by a vote of 77:6, with 74 abstentions. 136 The ICRC and the Challenges of Today’s International and Non-International Armed Conflict, in this volume. 137 The ICRC’s Compilation of the Customary Rules of Humanitarian Law, in this volume. 138 Jean-Marie Henckaerts/Louise Doswald-Beck (eds.), Customary International Humanitarian Law, 2005. As Volume II consists of two separately-bound parts, the publication actually has three volumes. 139 Joint Letter from the State Department Legal Adviser and the Defense Department General Counsel to ICRC-President J. Kellenberger of November 3, 2006, reprinted in: ILM 46 (2007), 511; Jean-Marie Henckaerts, Customary International Humanitarian Law: A Response to US Comments, International Review of the Red Cross 89 (2007), 473. 140 Rüdiger Wolfrum/Christiane Philipp, Die Taliban – ein Subjekt des Völkerrechts?, in: Sabine von Schorlemer (ed.), Praxishandbuch UNO, 2003, 145.

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aware that it would be impossible to codify humanitarian law completely. In order to avoid the impression that the Convention with Respect to the Laws and Customs of War on Land141 was an exhaustive account, they included the famous Martens Clause in its preamble: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience …”142 The Clause’s appeal to the public conscience materialized in the form of a public outcry when the photos taken at the notorious Abu Ghraib prison in Baghdad or the “torture memos” from the US Department of Justice became known. Hans-Joachim Heintze comments on the question whether the Martens Clause has a specific role to play in today’s asymmetric conflicts.143

E. The Third Pillar of the Hague Legacy: Judicial Settlement of International Disputes I. The Gradual Development of a Still Imperfect International Judiciary Part III of the symposium deals with aspects of “Dispute Settlement by International Courts and Arbitral Tribunals.” In Art. 1 of the Conventions for the Pacific Settlement of International Disputes of 1899 and 1907, the Contracting Powers promised no more than to use their best efforts to ensure the pacific settlement of international disputes, “[w]ith a view to obviating as far as possible recourse to force in the relations between States.”144 Today, in contrast to that, no one doubts that the UN Charter obliges all states definitely and without exception to settle their disputes by peaceful means.145 But does this obligation simply repeat the Charter’s prohibition on the threat or use of military force?146 That would render it superfluous, despite the fact that one of the purposes of the United Nations is “to bring about by peaceful means, and in conformity with the principles of justice 141

Hague II Convention of 1899 and Hague IV Convention of 1907. Quoted from the Preamble of the Hague II Convention of 1899. 143 Terrorism and Asymmetric Conflicts – A Role for the Martens Clause?, in this volume. 144 Emphasis added. 145 Art. 2 (3) of the UN Charter. 146 Art. 2 (4) of the UN Charter. 142

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and international law, adjustment or settlement of international disputes.”147 The better interpretation of Art. 2 (3) of the UN Charter therefore includes in it an obligation to settle disputes of this kind and not to let them simmer on, with the potential of escalating at any time into veritable threats to international peace and security.148 The obligation to settle a dispute can, of course, not be fulfilled by each state individually, but only collectively by all the states involved. But what can a state do if the other party or parties to the dispute are uncooperative, showing no good faith effort to reach a compromise? How does the obligation to settle go together with the absence of any compulsory settlement process in international law, making it yet another lex imperfecta of the international legal order? This is the question on which Karin Oellers-Frahm shares her thoughts with us.149 According to Western constitutional tradition, adjudication is an indispensable element of the rule of law. Therefore, the absence of compulsory judicial settlement of international disputes is a major obstacle on the way to establishing an international rule of law. The Heads of State and Government of the UN member states, gathered for the 2005 World Summit, admitted as much, but could not bring themselves to take any decisive step towards improvement of the unsatisfactory situation: “Recognizing the need for universal adherence to and implementation of the rule of law at both the national and international levels, we: … (f) Recognize the important role of the International Court of Justice … in adjudicating disputes among States and the value of its work, call upon States that have not yet done so to consider accepting the jurisdiction of the Court in accordance with its Statute …”150 I find it particularly striking that outside the scope of application of the European Convention on Human Rights151 and the EC Treaty,152 not even the European states have managed to establish a compulsory system for the judicial settlement of their international legal disputes. As a matter of fact, the 1949 Statute of the Council of Europe reaffirms not only the conviction of the now 47 member states that “the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation,” but also their devotion to

147

Art. 1 (1) of the UN Charter (emphasis added). Christian Tomuschat, in: Simma (note 22), Art. 2(3), MN 14. 149 Nowhere to Go? The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction, in this volume. 150 World Summit Outcome, GA Res. 60/1 of 16 September 2005, para. 134. 151 Cf. Art. 33 of the ECHR. 152 Cf. Art. 292 of the EC Treaty. 148

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“the rule of law.”153 This, however, apparently refers only to the rule of law in the member states and does not include any devotion to a judicially enforceable international rule of law. Eight years later, the European Convention for the Peaceful Settlement of Disputes was drawn up within the framework of the Council of Europe.154 Its Art. 1 provides that all international legal disputes which may arise between the High Contracting Parties shall be submitted to the ICJ. In over fifty years, however, only fourteen member states of the Council of Europe (eleven of them being also EU members) have ratified that Convention. This unsatisfactory state of affairs has recently prompted the Committee of Ministers to recommend that the governments of member states that have not yet done so consider accepting the jurisdiction of the ICJ in accordance with Art. 36 (2) of the ICJ Statute without reservation.155

II. The Advancement of the World Court and the Role of Germany in It Judge Bruno Simma’s comment sheds light on the fate of the optional clause in Art. 36 (2) of the ICJ Statute which gives states the opportunity to recognize as compulsory the Court’s jurisdiction in their legal disputes with other states on a reciprocal basis.156 Dating back to the Statute of the Permanent Court of International Justice of 1920, that clause constituted a major progress over the Hague Conferences where it had primarily been the sovereignty concerns of Germany which prevented the inclusion of compulsory arbitration in the Conventions for the Pacific Settlement of International Disputes (Hague I of 1899 and 1907).157 The Conventions accordingly no more than recommend recourse to arbitration and do not even envisage a permanent international judiciary. Expanding and concretizing Art. 16 of the Hague I Convention of 1899, Art. 38 of the Hague I Convention of 1907 provides: “In questions of a legal nature, and especially in the interpretation or application of international Conventions, arbitration is recognized by the Contracting Powers as the most effective, and, at the same time, the most equitable means of settling disputes which diplomacy has failed to settle. Consequently, it 153

Preamble of the Statute of the Council of Europe of 5 May 1949, ETS No. 1, available at http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm. 154 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, ETS No. 23, available at http://conventions.coe.int/Treaty/en/Treaties/Html/023.htm. 155 Recommendation CM/Rec(2008)8 of the Committee of Ministers to member states on the acceptance of the jurisdiction of the International Court of Justice, adopted at the 1031st meeting of the Ministers’ Deputies on 2 July 2008. 156 How Has Article 36 (2) of the ICJ Statute Fared?, in this volume. 157 Arthur Eyffinger, The 1899 Peace Conference: ‘The Parliament of Man, the Federation of the World,’ 1999, 373.

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would be desirable that, in disputes about the above-mentioned questions, the Contracting Powers should, if the case arose, have recourse to arbitration, in so far as circumstances permit.” But even the modern optional clause is ultimately just that – optional, the option being taken up by no more than approximately one third of the UN member states, even though one may interpret Art. 36 (3) of the UN Charter and Art. 36 of the ICJ Statute as “inviting” them to subscribe to that clause.158 Those states which have accepted the invitation have often done so only half-heartedly, subject to numerous reservations. While the San Francisco Conference of 1945 went beyond the Covenant of the League of Nations by making the ICJ the principal judicial organ of the world organization and its Statute an integral part of the UN Charter,159 it too succumbed to the constraints of realpolitik, stopping short of entrusting comprehensive and compulsory jurisdiction to the new World Court.160 The post-Second World War German Constitution, the Basic Law of 1949, in many respects is a reaction to the German chauvinism and belligerency of the first part of the 20th century. One of its major goals is to redirect German statehood toward serving world peace and to open it up to international law and supranational integration. It accordingly includes a provision obliging Germany to accede to “agreements providing for general, comprehensive and obligatory international arbitration.”161 Such a system has, however, never been established internationally. The only arguable equivalent – the optional clause of Art. 36 (2) of the ICJ Statute – was not referred to by the Basic Law, even though it already existed when that constitution was drafted. It is therefore unclear what obligations, if any, the Basic Law imposes on the German Government with regard to the ICJ.162 When the German Reich acceded to the League of Nations in 1926, it also became a party to the Statute of the PCIJ. On 29 February 1928, Germany recognized the jurisdiction of the Court as compulsory for a period of five years, pursuant to the optional clause of Art. 36 (2) of the PCIJ Statute. In February 1933, the new Nazi government extended Germany’s acceptance under the optional clause 158

Christian Tomuschat, in: Andreas Zimmermann/Christian Tomuschat/Karin OellersFrahm (eds.), The Statute of the International Court of Justice, 2006, Art. 36, MN 61. 159 Art. 92 of the UN Charter, in contrast to Art. 14 of the Covenant of the League of Nations. 160 Tomuschat (note 158), MN 5. 161 Art. 24 (3) of the Basic Law. 162 See, e.g., Claus Dieter Classen, in: Hermann von Mangoldt/Friedrich Klein/Christian Starck (eds.), Kommentar zum Grundgesetz, vol. 2, 5th ed. 2005, Art. 24 (3), MN 95 et seq.; Ingolf Pernice, in: Horst Dreier (ed.), GG-Kommentar, vol. II, 2nd ed. 2006, Art. 24, MN 67–68.

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for another five years, but in 1938 decided not to renew it again. Nazi Germany had left the League of Nations already in October 1933. The defeat of Germany in World War II and its subsequent division along the frontier between two hostile blocs, the Federal Republic of Germany becoming a NATO Member and the German Democratic Republic a Member of the Warsaw Pact, delayed German accession to the UN and the ICJ Statute. France, the Soviet Union, the UK and the US as the main victorious powers of World War II had not only occupied Germany militarily in 1945, but also reserved to themselves “rights and responsibilities relating to Berlin and to Germany as a whole” until 1990.163 According to Arts. 4 (2) and 93 (2) of the UN Charter, these four powers, which were also permanent members of the Security Council, had a veto over the admission of the two German states to the UN and the ICJ Statute. Only after the Federal Republic of Germany had entered into treaty relationships with the Soviet Union164 and the German Democratic Republic,165 the two German states were ultimately admitted to the UN and the ICJ Statute in 1973. With the German reunification, the separate GDR membership ended in 1990. It took the Federal Republic of Germany almost 35 years before it made use of the optional clause, recognizing as compulsory the ICJ’s jurisdiction over all disputes as of 1 May 2008, with three important exceptions: disputes which are subject to some other method of peaceful settlement agreed to by all the parties; disputes relating to the deployment of armed forces abroad or the use of German territory, airspace or maritime areas for military purposes; disputes in respect of which any other party has accepted the compulsory jurisdiction of the ICJ less than twelve months prior to the filing of the application bringing the dispute before the Court.166

163

They were given up by virtue of Art. 7 of the Treaty on the Final Settlement with Respect to Germany of 12 September 1990, reprinted in: ILM 29 (1990), 1186, which entered into force on 15 March 1991. Their operation had already been suspended by the Four Power Declaration of 1 October 1990, pending the entry into force of that treaty, AJIL 85 (1991), 175. 164 Treaty Between the Federal Republic of Germany and the Union of Soviet Socialist Republics of 12 August 1970, reprinted in: ILM 9 (1970), 1026. 165 Treaty on the Basis of Relations Between the Federal Republic of Germany and the German Democratic Republic of 21 December 1972, reprinted in: ILM 12 (1973), 16. 166 Available at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3& code=DE. Christian J. Tams/Andreas Zimmermann, “[T]he Federation Shall Accede to Agreements Providing for General, Comprehensive and Compulsory International Arbitration” – The German Optional Clause Declaration of 1 May 2008, GYIL 51 (2008), 391; Christophe Eick, Die Anerkennung der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofs durch Deutschland, ZaöRV 68 (2008), 763; see also Michael Bothe/Eckart

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Moreover, Germany has ratified without reservation a considerable number of treaties which provide for ICJ jurisdiction.167 According to the German Federal Constitutional Court, German courts must, by virtue of German constitutional law, take into consideration – but are not strictly bound by – the pertinent decisions of the ICJ when applying rules of international law.168 Even ICJ decisions in cases not involving Germany and thus having no binding force pursuant to Art. 59 of the ICJ Statute constitute persuasive authority in that sense, but only in those subject areas of international law where Germany has accepted the compulsory jurisdiction of the World Court. This qualification does not sit well with Art. 38 (1) lit. d of the ICJ Statute, pursuant to which ICJ decisions are (first-rate) subsidiary means for the determination of rules of international law. In any event, the qualification makes the exceptions to Germany’s declaration under Art. 36 (2) of the ICJ Statute important also as a matter of constitutional law. This leads to the question to what extent the reluctance of most states to participate in any comprehensive judicial or arbitral dispute settlement system is counterbalanced by their acceptance of compromissory clauses in specific treaties or optional protocols on dispute settlement attached thereto which are referred to in Art. 36 (1) of the ICJ Statute. Both devices were developed in the UN period after 1945. Christian Tams examines whether states’ readiness to accept such clauses or protocols and to make use of them has increased or rather decreased in recent decades.169 Are the withdrawal by the US of its declaration under Art. 36 (2)

Klein, Bericht einer Studiengruppe zur Anerkennung der Gerichtsbarkeit des IGH gemäß Art. 36 Abs. 2 IGH-Statut, ZaöRV 67 (2007), 825. 167 E.g., Art. IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, UNTS, vol. 78, 277; Art. 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, ETS, No. 23; Art. I of the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes of 18 April 1961, UNTS, vol. 500, 241; Art. 66 lit. a of the Vienna Convention on the Law of Treaties of 23 May 1969, UNTS, vol. 1155, 331. 168 Federal Constitutional Court (Chamber), Decision of 19 September 2006, 2 BvR 2115/01 etc., in a case concerning Art. 36 of the Vienna Convention on Consular Relations of 1963, UNTS, vol. 596, 261, Decision available in German at www.bundesverfassungs gericht.de; see the critique by Dagmar Richter, Does International Jurisprudence Matter in Germany? – The Federal Constitutional Court’s New Doctrine of “Factual Precedent,” GYIL 49 (2006), 51. 169 The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction, in this volume.

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of the ICJ Statute170 and its recent denunciation of the Optional Protocol to the Convention on Consular Relations171 examples of a general trend? Or are they rather instances of US exceptionalism? In any event, the inclusion in treaties of compromissory clauses on dispute settlement by the ICJ is a practice still en vogue. The most recent examples are Art. 27 of the UN Convention on Jurisdictional Immunities of States and their Property172 and Art. 23 of the International Convention for the Suppression of Acts of Nuclear Terrorism.173 Both clauses expressly permit the parties to exclude the compulsory jurisdiction of the ICJ by reservations, the first of them also giving priority to dispute settlement by arbitration, leaving the ICJ with a subsidiary role only.

III. Judicial Dispute Settlement – the Perspective of the European Union The most advanced system of judicial settlement of international disputes undoubtedly exists in the European Union. But even there, the jurisdiction of the European Court of Justice is complete only with regard to the EC Treaty, whereas it has no jurisdiction with regard to the Common Foreign and Security Policy (2nd Pillar) and only limited jurisdiction with regard to the Police and Judicial Cooperation in Criminal Matters (3rd Pillar).174 When the Treaty of Lisbon of 13 December 2007 enters into force,175 the gaps with regard to the Police and Judicial Cooperation in Criminal Matters will practically be closed, but the ECJ will still not have any significant jurisdiction with regard to the Common Foreign and Security Policy.176 Frank Hoffmeister introduces the EU perspective with regard to a specific situation, namely the unsettled dispute between the EU member Greece and the candidate state for EU accession Turkey on the delimitation of their overlapping claims 170 Notice deposited with the UN Secretary-General on 7 October 1985, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 36. 171 Letter of 7 March 2005 from the US Secretary of State to the UN Secretary-General as depositary, see Multilateral Treaties deposited with the Secretary-General, Chapter III, No. 8, note 1, available at http://treaties.un.org/Pages/ParticipationStatus.aspx. 172 UN Convention on Jurisdictional Immunities of States and their Property of 2 December 2004, reprinted in: ILM 44 (2005), 801 – not yet in force. 173 International Convention for the Suppression of Acts of Nuclear Terrorism of 14 September 2005, reprinted in: ILM 44 (2005), 815 – not yet in force. 174 Arts. 46, 35 of the EU Treaty. 175 Official Journal of the EU, 2007 C 306. 176 Arts. 275, 276 of the Treaty on the Functioning of the European Union, as the EC Treaty, as amended by the Treaty of Lisbon, will then be called.

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for maritime jurisdiction in the Aegean Sea.177 Will Turkey’s readiness to submit the dispute to the ICJ, which denied jurisdiction in 1978 after Greece had unilaterally instituted proceedings,178 be made a precondition for its EU accession? Would that be legitimate in view of other unsettled intra-EU disputes, such as the dispute between Spain and the United Kingdom on Gibraltar,179 or the admission of Cyprus in spite of the unsettled conflict between the Greek and Turkish Cypriots?180 In 1999, the European Council “stresse[d] the principle of peaceful settlement of disputes in accordance with the United Nations Charter and urge[d] candidate states to make every effort to resolve any outstanding border disputes and other related issues. Failing this they should within a reasonable time bring the dispute to the International Court of Justice. The European Council will review the situation relating to any outstanding dispute, in particular concerning the repercussions on the accession process and in order to promote their settlement through the International Court of Justice, at the latest by the end of 2004.”181 But the Council never followed up on this with regard to any candidate state. Whereas the primary concern of international lawyers has for a long time been the absence of effective avenues toward judicial or arbitral dispute settlement, the opposite problem has come up in recent years – the oversupply (some use the term “proliferation”) of dispute settlement bodies with overlapping jurisdiction. This is the procedural aspect of the widely-discussed fragmentation of international law. It provokes forum shopping and contributes to further fragmentation.182 One specific case in point is presented by Oliver Dörr:183 the MOX plant arbitration between Ireland and the United Kingdom which was made abortive when the Court of Justice of the European Communities intervened at the request of the 177

The Aegean Conflict – An Unsettled Dispute in Turkey’s EU Accession Course, in this volume. 178 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment of 19 December 1978, ICJ Reports 1978, 3. 179 See Spain v. UK, Case C-145/04, Judgment of 12 September 2006, ECR 2006, I7917; see also the Declaration by Spain and the UK annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, Official Journal of the EU, 2008 C 115/356. 180 Thomas Giegerich (ed.), The EU Accession of Cyprus – Key to the Political and Legal Solution of an “Insoluble” Ethnic Conflict?, 2006. 181 Presidency Conclusions, Helsinki European Council, 10 and 11 December 1999, para. 4. 182 Nikolaos Lavranos, Regulating Competing Jurisdictions Among International Courts and Tribunals, ZaöRV 68 (2008), 575. 183 The European Court of Justice Getting in the Way: The Abortive MOX Plant Arbitration, in this volume.

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European Commission and claimed exclusive jurisdiction over the dispute pursuant to Art. 292 EC.184 In Art. 227, the EC Treaty indeed provides a compulsory settlement procedure before the ECJ for all disputes between EU members which are within the scope of the EC Treaty. But what if none of the parties brings an action pursuant to Art. 227 EC, perhaps because the issues in dispute go beyond Community law? The EC did not intervene in the Ijzeren Rijn arbitration between Belgium and the Netherlands even though that procedure also touched on issues regulated by Community law.185

F. Has International Law Civilized Conflicts since 1907? The panel discussion at the end of the symposium was called upon to venture a preliminary answer to the question whether international law has “gently” civilized conflicts since 1907.186 Not unexpectedly, the panelists emphasize different aspects. Christine Chinkin describes promising trends for the civilizing of armed conflict with respect to women and children and rightly deplores the little practical impact they have so far had.187 At least, the trends gathered momentum when the Security Council passed Resolution 1820 (2008) on 19 June 2008. There it stressed that sexual violence as a tactic of war may impede the restoration of international peace and security, thus bringing it within the Security Council’s primary responsibility under Art. 24 (1) of the UN Charter and its Chapter VII powers. Christian Tomuschat draws attention to the major progress with regard to both the jus ad bellum and the jus in bello that has grown out of World War II, mankind’s (and Germany’s) darkest hour.188 He also points to an important lesson already sensed in 1918 and ultimately learnt in 1945: that the self-determination of a people with regard to its constitutional system cannot be unlimited, because internal lawlessness breeds lawlessness in a state’s external relations. This lesson, which prompted the three victorious powers in Potsdam to agree on the de-nazification and 184

Commission v. Ireland, Case C-459/03, Judgment of 30 May 2006, ECR 2006, I-

4635. 185

The Iron Rhine (Ijzeren Rijn) Arbitration (Belgium v. The Netherlands), Award of 24 May 2005, Permanent Court of Arbitration Award Series, 2007; Ineke van Bladel, The Iron Rhine Arbitration Case: On the Right Legal Track?, Hague Yearbook of International Law 18 (2005), 3. 186 Cf. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, 2001. 187 See Panel Discussion: Has International Law Civilized Conflicts since 1907?, in this volume. 188 Ibid.

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democratization of Germany,189 also brought forth the human rights revolution, initially embodied in the Universal Declaration of Human Rights190 and the Convention on the Prevention and Punishment of the Crime of Genocide.191 That revolution is rooted in the conviction that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”192 Natalino Ronzitti underlines the progress made in the last 100 years with regard to limiting the jus ad bellum and enhancing the protection of war victims provided by the jus in bello and supplemented by international human rights law, including the right of self-determination of peoples.193 The most essential rules of these three bodies of international law are now recognized as jus cogens. He rightly deplores, however, that there is no compulsory settlement mechanism for disputes concerning international humanitarian law. Nor, one might add, is there any implementation mechanism along the lines of human rights treaties, such as state reports, state complaints and individual complaints, to be considered by a body of independent experts or even a full-fledged international court. Thus unsurprisingly, more and more complaints are filed with the existing universal and regional human rights bodies and courts which concern situations of international or internal armed conflicts and raise the question how to harmonize humanitarian law standards and human rights standards.194

G. World Peace through International Law Are we then today better in preventing inter- and intra-state wars by means of disarmament and peaceful, i.e. civilized, dispute settlement? Have we after all overcome the sliding-scale logic of General von Clausewitz, that war is the contin-

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Report on the Tripartite Conference of Berlin of 2 August 1945, Official Gazette of the Control Council for Germany, Supplement No. 1, 13. 190 The Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948. 191 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, UNTS, vol. 78, 277. 192 First preambular paragraph of the Universal Declaration of Human Rights (note 190). 193 See Panel Discussion (note 187). 194 See Dagmar Richter, Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres?, in this volume.

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uation of state policy by other means195 – a hundred years after the Second Hague Conference, eighty years after the Kellogg Pact196 and over sixty years after the establishment of the UN?197 On first impression, the answer is negative if one considers the number of international and non-international armed conflicts which have erupted in recent years. In one respect though, we are certainly better off today than our ancestors were in 1907 – a third world war does not seem imminent. And after the end of the Balkan conflicts in the late 20th century, which erupted in the wake of the dissolution of the former Yugoslavia, there is reason to believe that the 21st century will witness no war between member states of the Council of Europe. For optimists, the short armed conflict between the Georgia and the Russian Federation about Abchazia and South Ossetia in August 2008, in which both jus ad bellum and jus in bello rules were violated by both sides,198 is the exception which – hopefully once for all – proves the rule. At least, Georgia has belatedly chosen to take legal action against the Russian Federation in the International Court of Justice199 and the European Court of Human Rights.200 But even pessimists who prefer to formulate a less positive outlook will have to admit that the lamps will not “go out all over Europe” any more.201 After centuries of futile attempts at maintaining peace through shifting alliances and balance of power politics, Europe has ultimately developed into an organized legal community, with the EU at its core. From the perspective of 1907 and 1945, the most important and yet 195 Carl von Clausewitz, Vom Kriege, first published 1832–1834, Nachricht, available at http://www.carlvonclausewitz.de/vom_kriege.php. 196 General Treaty for the Renunciation of War as an Instrument of National Policy of 27 August 1928, LNTS, vol. 94, 57. 197 The Charter of the United Nations was signed on 26 June 1945. 198 Otto Luchterhand, Völkerrechtliche Aspekte des Georgien-Krieges, Archiv des Völkerrechts 46 (2008), 435. 199 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, available at http://www.icj-cij.org/docket/files/140/14801.pdf. Georgia bases the ICJ’s jurisdiction solely on Art. 22 of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, UNTS, vol. 660, 195. 200 In August 2008, Georgia filed an inter-state complaint against the Russian Federation under Art. 33 of the European Convention on Human Rights and requested the indication of interim measures; in reaction to this, more than 3,300 individual applications against Georgia have been filed by inhabitants of South Ossetia, see European Court of Human Rights, Press Releases of 12 August 2008 and of 14 January 2009. 201 “The lamps are going out all over Europe; we shall not see them lit again in our lifetime,” Edward Grey, 1st Viscount Grey of Fallodon, British Foreign Secretary, in August 1914.

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most neglected accomplishment of European integration is the preservation and strengthening of peace and liberty by pooling the resources of the European states.202 From the perspective of 1989, the ending of the division of the European continent, that was brought about by World War II, and the creation of firm bases for the construction of the future Europe must be added.203 Have the experiences of two world wars thus made us Europeans “wiser” or more civilized, or have we only been luckier than our ancestors? Do we not renege on the most important civilizing achievement of the UN Charter – the determination “to save succeeding generations from the scourge of war” – when we advocate a right of preemptive or even preventive self-defense? Are our developed nations still “exporting” war to the developing world? Are we co-responsible for the armed conflicts in the Third World because we are not doing enough to promote economic and social progress of the underdeveloped countries? Are we really serious about war prevention as long as we cannot agree on defining the crime of aggression,204 this “worst of crimes,”205 and thereby confer jurisdiction on the International Criminal Court over it?206 As a matter of fact, our ancestors were able to define and subsequently apply the offense of “crimes against the peace” in the Nuremberg and Tokyo Trials in 1945/46, claiming that the pertinent provisions were declaratory of a pre-existing crime under customary international law.207 We have obviously not taken seriously what Robert H. Jackson, the US Chief Counsel, said in his opening statement at the Nuremberg Trial: “… the ultimate step in 202

Para. 8 of the Preamble of the EC Treaty. Para. 2 of the Preamble of the EU Treaty. 204 But see as a first step the UN General Assembly’s Declaration on the Definition of Aggression of 14 December 1974, GA Res. 3314 (XXIX), in particular Art. 5 (2). 205 The quotation is from the opening statement of US Chief Counsel Robert H. Jackson in the Nuremberg Trial, see id., The Nürnberg case, as presented by Robert H. Jackson, 1947, 30, 94. 206 Art. 5 (2) of the Rome Statute of the ICC (note 108); Claus Kress, The Crime of Aggression before the First Review of the ICC Statute, Leiden Journal of International Law 20 (2007), 851; Anja Seibert-Fohr, The Crime of Aggression: Adding a Definition to the Rome Statute of the ICC, ASIL Insights, vol. 12, Issue 24, 18 November 2008. 207 Art. 6 lit. a of the Charter of the (Nuremberg) International Military Tribunal annexed to the London Agreement of 8 August 1945, UNTS, vol. 82, 279. A similar provision was included in the Tokyo Charter of the International Military Tribunal for the Far East, Bert V. A. Röling, Tokyo Trial, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. 4, 2000, 864; see also Principle VI of the Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries, Yearbook of the International Law Commission (ILC Yearbook) 1950, vol. II, 374, and Art. 16 of the Draft Code of Crimes against the Peace and Security of Mankind, with commentaries, ILC Yearbook 1996, vol. II, Part 2, 17. 203

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avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”208 On balance, our record with regard to war prevention on the universal level is mixed at best. Are we doing better with regard to containing, i.e. civilizing, those armed conflicts whose outbreak we could not prevent? Wars do not appear to be less brutal today than they were a hundred years ago. Although we have erected a much tighter structure of treaties on humanitarian law, they are not always strictly implemented. National and international prosecutions of gross violators are not as determined as they should be. We have not prevented genocide in the armed conflicts in Bosnia, Rwanda, Darfur and the Congo. But in the former three cases, we have at least taken steps ex post facto to ensure that the perpetrators are punished.209 In the ongoing “war on international terrorism” after 9/11 international humanitarian law and international human rights law have suffered an enormous setback: Various attempts striking at the very heart of the international community’s endeavor to humanize armed conflicts have been made, in particular attempts to normalize the use of torture and inhuman treatment (such as enforced disappearance) and to create a legal black hole for “illegal combatants” in which they enjoy neither the protection of civilians (because they are combatants) nor of combatants (because they are illegal). On the other hand, the resistance against these attempts has been forceful and at least partly successful. On balance, our record with regard to war containment is also only mixed. The same can be said about disarmament: Major progress has certainly been made concerning non-conventional (WMD) and conventional disarmament, but we are still spending much more on nuclear and conventional weapons than our

208

Jackson (note 205), 30, 93. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, SC Res. 827 of 25 May 1993 (as amended); Statute of the International Criminal Tribunal for Rwanda, SC Res. 955 of 8 November 1994 (as amended). By SC Res. 1593 of 31 March 2005, the Security Council referred the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court. Upon his request, a Pre-Trial Chamber of the ICC on 4 March 2009 issued an arrest warrant for war crimes and crimes against humanity (but not for genocide) against Sudanese President Al Bashir, available at http://www.icc-cpi.int/NR/exeres/0EF62173-05ED-403A-80C8-F15EE 1D25BB3.htm. See Editorial Comments: Recent Steps of the ICC Prosecutor in the Darfur Situation: Prosecutor v. President, Journal of International Criminal Justice 6 (2008), 829. 209

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ancestors ever dreamt of. The arms race obviously continues even after the end of the block confrontation, so that the “peace dividend” is less than one would have hoped. One of the reasons certainly is the immense growth of international military missions, some with peace-keeping and some with peace-enforcement character.210 We have advanced furthest in the area of judicial dispute settlement. One indicator is the enormous increase in the case-load of the International Court of Justice, the Permanent Court of Arbitration and the Dispute Settlement Body of the WTO. But the growing importance of the European Court of Human Rights, the quasi-judicial Human Rights Committee established under the International Covenant on Civil and Political Rights and the European Court of Justice must also be taken into account. Although their inter-state cases are few, their jurisprudence supports the notion that states are subject to judicially enforceable international legal constraints even in areas of important national interests. One should not underestimate the habituation effect. Finally, the various international and hybrid criminal courts have to be taken into account: When a state official is tried for international crimes, the state itself is inevitably put in the dock. The international legal rules on the jus ad bellum and the jus in bello are a permanent construction site. With the rise of global terrorism, they have been more seriously challenged than ever since 1945. Are the prevention and containment of war missions unaccomplished because ultimately they are missions impossible, given human nature, like the elimination of crime? Even if that were true, it would not relieve us from the responsibility to get as close as possible to the ideal. Our ancestors of 1899 and 1907 should serve as role models in this respect. International law can of course be only one factor in making the world safer and more peaceful. But establishing an effective international rule of law would take us a long way towards accomplishing our two missions. Quoting the Preamble of the Hague Conventions I of 1899 and 1907 once again, we should remain “[d]esirous of extending the empire of law and of strengthening the appreciation of international justice” – desirous and firmly committed. “He who wishes to approach the aim of world peace in a realistic way must take this problem quite soberly, as one of a slow and steady perfection of the international legal order.”211 No end of his-

210

See Art. 17 of the EU Treaty, which includes the so-called Petersberg tasks (Arts. 42–44 of the EU Treaty as amended by the Treaty of Lisbon). 211 Hans Kelsen, Peace through Law, 1944, Preface, ix; see also Grenville Clark/Louis B. Sohn, World Peace Through World Law, 1958, who advocated a revision of the UN Charter so as to enable it to maintain world order under enforceable world law.

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tory is in sight,212 only a Sisyphean task to which fate has condemned us humans. So let us unite “skeptical intelligence and vision”213 and add some courage to roll the boulder further up the hill.

212 Francis Fukuyama, The End of History and the Last Man, 1992, has long since been proved wrong. 213 Kennedy (note 4), 290.

Walther Schücking’s Contribution to the International Rule of Law By Jost Delbrück I have been asked to make some introductory remarks on Walther Schücking’s contribution to the International Rule of Law. In order to do so, I shall begin with a few biographical data because Schücking’s work is closely interwoven with his personal life as a scholar, an active politician and with his leading role in the – as it is called – moderate or scientific pacifist movement around the turn of the 19th century and well into the first decades of the 20th century.

A. Biographical Data: Walther Schücking’s Career as Scholar and Pacifist Politician Walther Schücking was born in Münster/Westphalia in 1875. He grew up in a harmonic family in which the strict, but increasingly liberally minded father Lothar Schücking and the warmhearted, but also temperate and pragmatic mother Luise Schücking had a lasting impact on his personality: Self-discipline and a keen interest in public affairs, on the one hand, and a strong compassion and sense of justice together with a good deal of strong-mindedness, on the other hand, became the lasting traits of his personality. He graduated from grammar school with top grades and – following a long family tradition – he enrolled as a law student at the University of Munich. His main interest during the two terms in Munich was directed toward lectures in history and in economics, where Lujo von Brentano – a leftliberal economist – impressed him most. After spending further terms at the universities of Bonn and Berlin he enrolled at the University of Göttingen for the summer term 1896. Here he started to seriously study law, and within a year’s time he passed the final law examination with a good grade. His scholarly career began with his participation in a legal writing competition, in which he won the first price. The law faculty was so impressed by his piece on “The Coastal Sea under International Law” that it was accepted as a doctoral thesis. He received the doctor of laws degree in the summer of 1897 at the age of 22. Soon after beginning the

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legal apprenticeship, he decided to return to Göttingen to pursue an academic career instead. He took up his post-graduate studies with Professor Ludwig von Bar of the University of Göttingen who – one could say – had become a role model for Schücking. Ludwig von Bar held a chair i.a. in international conflict of laws and in international law. He was named a member of the Permanent Court of Arbitration at the Hague and had served as a member of the Imperial Parliament on the ticket of the left-liberal Party. He strongly supported Schücking’s post doctoral work. Already in 1899 Schücking completed his post-doc dissertation on a legal history subject and received the venia legendi in constitutional law, international law, canon law and administrative law. At the age of 25 Schücking was appointed as professor extraordinary at the University of Breslau. In 1902 he was appointed as full professor at the University of Marburg/Lahn. It was here that he fully focused his academic work on the thorny problem of how to conceptualize an international order that legally and politically could serve as the basis of lasting peace. In 1908 he published his short, but groundbreaking booklet on “Die Organisation der Welt” (the organization of the world). Politically he finally joined leftliberal groups and respective political parties in Marburg and was a candidate for the elections for the Prussian Diet. Due to the Prussian electoral system – the Dreiklassenwahlrecht (three-class system of voting) – he had no chance to win over the conservative and national-liberal candidates. His moderately pacifist writings and his open commitment to the liberal left earned him the fierce critique of his colleagues not only in Marburg but also of the community of the German international and constitutional law professors, and, of course, of the Prussian authorities. He was repeatedly subject to disciplinary measures, particularly during World War I, when he publicly opposed the War and the political goals proclaimed by the Imperial Government and the Military High Command. Furthermore, he entertained secret and not so secret contacts with like-minded friends and colleagues in neighboring “enemy countries” like the Netherlands, the UK and France, with the aim of bringing about an early end to the War. The political environment in Germany changed – at least for a decade – when the War was over. Now Schücking’s advice was sought with regard to the peacenegotiations at Versailles in general and with regard to the League of Nations project, in particular. He was a member of the German delegation to the Versailles Peace Conference until he withdrew because he became increasingly disappointed with the policies of the Entente Powers, who rejected the German draft proposal for the League Covenant in toto. As a member of the newly elected German Reichstag he was among those who voted against the ratification of the Versailles Peace Treaty that he criticized as short-sighted and prone to lead to another major war.

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Because of his political activities Schücking did not teach at the University of Marburg after 1919. Attempts by the Berlin Government to appoint Schücking to a chair at the University of Berlin failed, partly because of inappropriate interferences by the government with the Berlin faculty, and partly because of the strongly conservative leanings of the Berlin faculty. Finally, in 1926 Schücking was appointed to the chair for international law and the directorship of the Kiel Institute of International Law. In his Kiel years Schücking was very productive. He worked, i.a., on the comprehensive first and only commentary on the League of Nations Covenant that he co-authored with his close friend Hans Wehberg. In the late 1920s his work in Kiel became overshadowed by the rising activities and harassments by the National-Socialist Student movement. So, when in 1930 he was elected to the Permanent International Court of Justice – he had served on the Court a decade earlier as an ad hoc Judge in the Wimbledon Case – Schücking gladly accepted the appointment. Orders of the Prussian Nazi-controlled cultural ministry in 1933 to return to Kiel he did not follow, heeding the advice of friends in view of the personal dangers he would face in case of his return. Not unexpectedly, Schücking was ousted immediately from his chair and his position as director of the Kiel Institute. Schücking died at the Hague in 1935 at age 60.1

B. The Legacy of Walther Schücking: An International Legal Community and the Rule of Law Schücking was firmly convinced that lasting peace within the international system could only be achieved on the basis of the rule of law. With this position he reveals himself as an idealist in a time when idealism as a philosophical concept was not en vogue. He explicitly relies on Kant’s central dictum that individual freedom and security can only be achieved within a legally constituted order. Therefore, people leave the rude state of nature and subject themselves to the rule of law. And Schücking followed Kant that his concept of the legally constituted order could and must be realized on the international level as Kant had laid out in his tract on “Perpetual Peace” of 1795.2 Based on this approach, Schücking understood inter1

For a fuller account of Schücking’s life and scholarly work see the excellent doctoral dissertation Frank Bodendiek, Walther Schückings Konzept der internationalen Ordnung (Walther-Schücking’s Concept of the International Order), 2001. 2 See, for example, Walther Schücking, Organisation der Welt (Organization of the World), 1909, 57 and 76, also published in: Wilhelm von Calker (Hrsg.), Staatsrechtliche Abhandlungen, Festgabe für Paul Laband zum fünfzigsten Jahrestage der Doktorpromotion, Bd. 1, 533 et seq., 1908; in more detail Bodendiek (note 1), 179 et seq.

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national law as a value-oriented law in contrast to the then dominant positivist legal doctrine. In his view international law was an instrument to resolve international conflicts and thus had to be developed and interpreted according to the supreme paradigm of peace. In methodological terms, this approach led Schücking to postulate that international legal scholarship should not only be concerned with the international law as it exists, but should also engage in its progressive development and therefore should be open to the pacifist movement.3 In modern terms, Schücking advocated an interdisciplinary cooperation between international legal scholarship and peace research. In his view it was the task of the so-called scientific pacifism to elucidate the historical and present nature and causes of international conflict formations. The task of the international scholarship is then to cast the results of the political and sociological findings into the appropriate international law. Schücking clearly saw the potential danger of this methodological approach – he called it an “evolutionist method of legal policy”4 – in that it could lead to an unscientific mixture of lex lata and lex ferenda, a distinction that Schücking held to be one of the most valuable contributions of legal positivism. Schücking also warned against the postulation of international legal norms that would be too far removed from reality – a caveat aimed at the adherents of a radical pacifism. In both – the emphasis on the history of international law and on keeping international law not too far removed from reality – Schücking’s methodological approach closely resembles that of his contemporary Max Huber5 with whom he was befriended, but curiously they did not mutually refer to their scholarly work. As mentioned earlier, Schücking’s vision or concept of an international legal order was based on the idea that peace through law could only be achieved within an institutionally constituted legal community of states. And for a considerable time, he found evidence of real progress in the direction of an organization of the world.6 Much of his scholarly work in the years after the first and the second Hague Peace Conferences concentrated on possible world federation models. The prolonged intensive debate between international law scholars whether the creation 3

For a more detailed insight into the different trends and ideological camps within the pacifist movement at the end of the 19th and beginning 20th centuries and the relationship between pacifism and the German international law community see Bodendiek (note 1), 26 et seq. and 129 et seq. 4 Walther Schücking, L’Allemagne et les progrés, 1914, 427; also Bodendiek (note 1), 124 with further references. 5 On Max Huber’s sociological approach to international law see Jost Delbrück, Max Huber’s Sociological approach to International Law Revisited, European Journal of International Law 18 (2007), 97 et seq. 6 See Schücking (note 2), passim.

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of the Permanent Court of Arbitration was already the beginning of the organization of the world in terms of a rudimentary Federation of States (Staatenbund) cannot be traced here in full.7 Suffice it to remember that after the creation of an international Prize Court failed – a court that should have possessed obligatory jurisdiction – Schücking himself conceded that the institutional steps taken by the Hague Peace Conferences did not amount to the kind of organization of the world that he favored as the basis of the rule of law. Thus, he turned to concrete problems that needed to be resolved in order to establish the rule of law on the international level. He focused on two main issue areas that he considered to be essential for the realization of the rule of law. It is in this area that Schücking made major and still highly topical contributions to the internationalization of the rule of law: First, he addressed the question of the role of sovereignty in the “peace through law” strategy, and second, the problem of the enforcement of international law. Schücking did not deny the scientific value of the concept of sovereignty, but he rejects the notion of sovereignty as an insurmountable obstacle to the organization of the world, i.e. the building of a community of the states under law. In reaching this conclusion he followed his method of first tracing the historical origins of the sovereignty dogma and then adapting it to the exigencies of the international system of his time. The concept of state sovereignty originated from the struggle of the territorial princes with the Pope and the Emperor in the early modern times. As such it had a progressive cultural effect. But given the social and political changes brought about by the forces of modernization, such traditionalist understanding of sovereignty could only have negative effects. Schücking freed the concept of sovereignty of its almost mythical character. He reduced the meaning and function of sovereignty to a legal concept that defines the states’ capacity to legally act within the community of states as subjects of international law and thereby possessing the legal power to communicate with other subjects of international law and enter into legally binding relations, that is, i.a., participating in the organization of the world with the consequence that they subject themselves to the rule of law. Schücking, as much as he was an idealist, was no utopian. Although he devoted much of his work to the development of the peaceful settlement of international disputes, he also firmly believed that international law, like domestic law, needs procedures to enforce it, for instance, decisions rendered by arbitration courts. Schücking certainly was not the first international legal scholar who called for a 7 For Schücking’s position on the Hague Conferences of 1899/1907 see his major work Der Staatenverband der Haager Konferenzen, vol. 1, 1912, English translation: The international union of the Hague Conferences, by Charles Fenwick with an introduction by James Brown Scott, 1918.

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prohibition of war and emphasized the need for obligatory arbitration. But within Germany he, indeed, was the first and – for quite some time – only international law scholar who clearly saw that peaceful settlement of international conflicts procedures needed a strong international “Executive” to enforce not only the decisions by arbitrators, but international law in general. He had quite modern ideas of the institutional set-up and the powers of such executive organ that he called the “International Reconciliation and Mediation Office.” Its powers included the right to sanction violations of international law, such as disregarding binding decisions of arbitrators, violating a moratorium imposed upon states or violating the rules of international humanitarian law. Sanctions included diplomatic and economic measures as well as military punitive actions. The latter were to be undertaken by an international force consisting of national military contingents. Schücking knew that his concrete and yet visionary proposals for backing up the rule of law by an “International Police” – as he also called the executive organ – were not yet in tune with the dominant political class – national and international. His and the proposals of others for an international executive found recognition in the post-WW I international law only in a rather watered down form. But undoubtedly Schücking’s scholarly and political legacy still is rather topical considering the present renaissance of pre-WW I assertions of sovereign states to stand above the law, on the one hand, and the emphatic calls by international experts such as the High Level Panel of Experts that preventing the international community from relapsing into the Hobbesian state of nature, first of all, requires the recognition of the rule of law and – as Schücking called it – the moral will to comply with the law – or in modern terms, an ethic of law compliance.

The Hague Peace Conferences and a Century of Further Struggles By Stephen C. Neff The Hague Peace Conferences of 1899 and 1907 marked the beginning of modern international law. To be sure, international law had been evolving for centuries, and even for millennia, before that. But the Hague Conferences inaugurated a new phase – a period of conscious and deliberate making of new rules of international law, by means of regular collective negotiation between the states of the world. There had been foreshadowing of this development, too, prior to 1899. There was, for example, the international effort to eradicate the slave trade, beginning with the declaration at the Congress of Vienna in 1815, carried to a further pitch with the General Act of 1890.1 Also important was the Declaration of Paris of 1856, fixing various rules relating to maritime war and neutrality.2 There had also been hope that the Washington Rules of 1871 on the duties of neutral states in wartime, agreed between Britain and the United States, would win general acceptance from states.3 But all of these prior efforts had been negotiated between a small circle of countries. Only with the Hague Peace Conferences did the idea of a global parliament of nations first begin to become a reality – and even the First Conference had a much more limited membership than the Second one did (twenty-six states as opposed to forty-four, respectively).4 1

Declaration on the Universal Abolition of the Slave Trade, 8 February 1815, 63 CTS 473; and General Act of Brussels Relating to the African Slave Trade, 2 July 1890, 173 CTS 285. See also Declaration on the Abolition of the Slave Trade, 28 November 1822, 73 CTS 31. 2 Declaration of Paris, 16 April 1856, 115 CTS 1. 3 Great Britain-USA, Treaty of Washington, 8 May 1871, 143 CTS 145, Art. 6. 4 For a vivid account of the two Hague Peace Conferences, see Barbara Tuchman, The Proud Tower: A Portrait of the World Before the War 1890–1914, 1966, 265–338. For a popular account of the First Conference, see Arthur Eyffinger, The 1899 Hague Peace Conference: “The Parliament of Man, the Federation of the World,” 1999. For the official documentation of the Conferences, see James Brown Scott (ed.), The Reports to the Hague Conferences of 1899 and 1907, 1917, and James Brown Scott (ed.), The Proceedings of the Hague Peace Conferences: The Conference of 1907, 3 vols., 1920–1921.

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By 2007, then, the world could claim a century’s worth of experience with this new style of international law-making. It is therefore an appropriate time to take stock of how successful this effort has been over the longer term. In particular, this discussion will assess progress made over the course of the past century in each of the three broad topics covered by the two Conferences: armaments and militarization; the laws of war; and the peaceful settlement of disputes. Brief general assessments will be offered on the degree of progress in each of the three subject areas; and then some final general thoughts will be offered, with some measure of intellectual trepidation.

A. Militarization and Armaments Of the three subject areas of the Hague Conferences, this is the one that is most subject to misunderstanding. It is tempting to place the label “disarmament” onto it, but that would be misleading. In the initial Russian proposals, set out in a circular of January 1899, the call had not been for actual reductions of stockpiles of weapons. Rather, it had been for two rather different types of arrangement. The first of these comprise what would now be termed stand-still arrangements, in the areas of military expenditure and of new weapons development. The second type of arrangement was for the collective foreswearing of the use of certain specified types of weaponry in warfare. There was, of course, nothing to stop the powers from agreeing to actual reductions of existing weapons stocks. But the furthest that the Russian circular envisaged going in this direction was to propose “a preliminary examination of the means by which a reduction might … be effected in future” in the size of armed forces.5 The Conference proposal might therefore be characterized as concerned with the placing of limits upon the general process of militarization, rather than with reduction of armaments per se. More specifically, the 1899 Russian circular made four proposals in this general subject area. The first two were of the stand-still variety: (i) a freeze of military and naval budgets; and (ii) a technological freeze, in the form of a prohibition on the development “any new kinds of fire-arms whatever, and of new explosives, or any powders more powerful than those now in use, either for rifles or cannon.” The other two proposals fell into the second category, of limiting the deployment or use of existing types of weaponry in war. Specifically, it was proposed that there be: (i) a general restriction (i.e., not necessarily an absolute prohibition) on 5 Russian Circular Note Proposing the Programme of the First Conference, 30 December 1898, in: Scott, Reports (note 4), 2–4. The Circular was dated 30 December 1898 by the pre-Gregorian calendar then in use in Russia.

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“the use in military warfare of the formidable explosives already existing” and, more specifically, on the throwing of projectiles or explosives from balloons; and (ii) a prohibition, in naval warfare, on the use of submarines, coupled with an undertaking to refrain from constructing, in the future, vessels with rams.6 On these topics, the results of the two Hague Peace Conferences must be said to have been disappointing. At the First Conference, no appreciable progress was made on the two stand-still proposals – so little, in fact, that the issue was not even placed on the agenda of the Second Conference. Nor were the bans on submarine warfare or on the use of ships with rams agreed. Agreement was reached, however, on three specific prohibitions. One was on the launching explosives from balloons, although this was only for five years’ duration7 (at the Second Conference, the duration of this ban was resuscitated and extended to the end of the anticipated Third Conference).8 A second ban was on the use of expanding bullets in warfare, sometimes known as “dum-dum bullets.” The third was a prohibition against projectiles whose “sole object” was the delivery of asphyxiating or deleterious gases.9 It will be observed that the prohibitions against throwing projectiles from balloons and against the use of gas-filled projectiles both fell victim, in fairly short order, to the ingenuity and desperation of belligerents, most notably in the First World War. Nonetheless, some modest progress has been made since 1907 in the area of armaments reduction – both in the prohibiting of certain types of arms, and also – though if only to a very modest extent – in achieving actual reductions in military capacities.

I. The Fate of the Hague Conference Declarations The Hague Declaration of 1899 on Asphyxiating Gases in Warfare suffered from certain inherent weaknesses. For example, it concerned only the use of gas, leaving states free to develop and stockpile such weapons. In addition, the Declaration only prohibited the delivery of gases by means of projectiles. The initial use 6

Ibid. Declaration Prohibiting the Discharge of Projectiles from Balloons, 29 July 1899, 187 CTS 456. 8 Declaration Prohibiting the Discharge of Projectiles from Balloons, 18 October 1907, 205 CTS 403. 9 Declaration Prohibiting the Use of Expanding Bullets, 29 July 1899, 187 CTS 459; and Declaration Respecting the Use of Projectiles Diffusing Asphyxiating Gases, 29 July 1899, ibid., 453. Today, these matters would be regarded as falling into the category of laws of war. 7

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of chlorine gas, by the Germans at Ypres in April 1915, was effected by releasing the gas from ground-based cylinders, a method not technically covered by the Hague Declaration. The belligerents, however, soon demonstrated their willingness to breach the letter, as well as the spirit, of the Declaration by employing gasfilled projectiles. By August 1915, the Germans were firing shells filled with tear gas. The French responded by developing – and using – phosgene-filled shells in their defence of Verdun in 1916. Altogether, some two hundred tons of poison gas were deployed in the course of the conflict.10 The Declaration on the Launching of Projectiles from Balloons proved similarly ineffective. Since the text of the Declaration stated that the ban applied not only to explosives dropped from balloons but also to “other new methods of a similar nature,” then presumably bombardment from airplanes was also covered. Nonetheless, countries wasted little time in putting the newly invented airplane to deadly military use. Explosives were first dropped from aircraft in 1911 by the Italians in their conquest of Libya from the Ottoman Empire. In the very first month of the First World War, the Germans dropped bombs on undefended Antwerp from zeppelins. They sent a lone aircraft to drop a token bomb on Paris on a daily basis for several weeks in the autumn of 1914, and also dropped bombs on the Norfolk coast in Britain in January 1915. London was bombed for the first time in May of that year, again by zeppelin. In the course of the conflict, some fourteen hundred British civilians were killed by air-dropped bombs, and some forty-eight hundred wounded. The Allied side also resorted to aerial bombing, although to very little material effect.11 By the end of the First World War, it was therefore abundantly apparent that the two Declarations, on gas warfare and on aerial-dropped explosives, had proved to be failures. In the case of aerial-dropped explosives, the international community effectively gave up and conceded that that method of war was here to stay. In 1923, a group of experts met at the Hague to design a set of Rules for Aerial Warfare. This code made it clear that aerial bombardment was now regarded as a permissible method of war, although a number of restrictions were placed on it. Most notably, it was prohibited to employ aerial bombardment for the purpose of terrorizing a civilian population, or to direct bombardments against non-military

10

For information on the employment of gases during the First World War, see Edward M. Spiers, Chemical Warfare, 1986, 13–33. 11 For an account of strategic bombing during the First World War, see Stephen Budiansky, Air Power: The Men, Machines, and Ideas That Revolutionized War, from Kitty Hawk to Iraq, 2004, 90–117.

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objectives, although the Rules made it clear that military objectives include armaments factories and communications and transport facilities.12 Regarding poisoned gas, an attempt was made after the First World War to reinstate and strengthen the Hague Declaration. This took the form of the Geneva Protocol of 1925, which contained a modest extension of its predecessor of 1899 in two respects: first, by extending the prohibition to any kind of use of poisoned gas, not merely to the delivery of gases by means of projectiles; and second, by extending the prohibition to bacteriological methods of war, as well as to chemical ones.13 This initiative could be considered successful in the sense that gas warfare, in the event, was not employed in the Second World War, as it had been in the First one. But that fortunate turn of events may well have owed more to the mutual fear harbored by the belligerents, rather than to scrupulous respect for the rule of law as such. Moreover, the 1925 Protocol had some serious shortcomings of its own. The vast majority of states acceding to the Protocol did so with the key proviso that they reserved the right to use gas as a belligerent reprisal – i.e., the right to respond in kind to any use of gas against them. The practical result was thereby to reduce the Protocol from an absolute prohibition into a no-first-use arrangement. In addition, the Protocol contained no prohibition against the development or stockpiling of chemical weapons – and the major powers of the world proceeded to carry out research on and development of chemical weapons on a large scale during the Cold War period. Only in the years following World War II did more comprehensive prohibitions emerge in the areas of chemical and biological warfare. In 1972, an International Convention on Biological Weapons was agreed. This went beyond the Geneva Protocol by prohibiting both the development and the deployment of such weapons.14 A similarly comprehensive ban on chemical weapons proved more difficult to arrive at. But success was finally attained in 1993. The Convention against Chemical Weapons, like its biological-weapons counterpart, provided for a ban on development, production and stockpiling of chemical weapons, as well as on use.

12

Hague Rules of Aerial Warfare, American Journal of International Law (AJIL) 17 Supplement (1923), 245, Arts. 22–26. 13 Protocol for the Prohibition of the Use in War of Asphyxiating Gases, 17 June 1925, LNTS, vol. 94, 65. 14 Convention on the Prohibition of Biological and Toxin Weapons, 10 April 1972, UNTS, vol. 1015, 163.

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It also required the destruction of existing stocks, as well as providing for an extensive monitoring mechanism through a permanently existing organization.15

II. Prohibiting Certain Weapons The vision of prohibiting the use of certain types of weapons may have met with very little success at the Hague Conferences. But it did not die out entirely. And there have even been some further successes, beyond the areas of chemical and biological warfare. In a small number of cases, the international community has achieved the goal, outlined in the Russian circular of 1899, of agreeing on prohibitions against weapons that had not actually been developed. The most notable instances occurred in 1980, when a Convention on Indiscriminate Weapons was concluded.16 Protocol I to this agreement prohibited the use of weapons leaving non-detectable fragments in the human body – although it stopped short of prohibiting the development of such weapons. Another protocol to this Convention, adopted in 1995, restricted – but did not quite prohibit – the use of laser blinding weapons. The protocol fell short of an absolute prohibition, in that it only banned weapons that are “specifically designed” to cause blinding, expressly not banning weapons of which blinding was merely “an incidental or collateral effect.”17 There has been one outstanding example of an international agreement to discontinue the use of an existing weapon of war. This concerned anti-personnel land mines. Various restrictions on these weapons were set out in a protocol to the 1980 Convention on Indiscriminate Weapons, chiefly oriented towards the safeguarding of civilians from injury. In 1997, however, a Convention was concluded placing an absolute prohibition against their use. This agreement prohibited, in addition, the development, production and stockpiling of these weapons, and also required the destruction of existing stocks.18 With respect to the most powerful and frightening weapons of all – nuclear weapons – there has been a notable lack of progress. In 1961, the UN General Assembly pronounced itself opposed to the use of nuclear weapons by an overwhelm15

Convention on the Prohibition of Chemical Weapons, 13 January 1993, International Legal Materials (ILM) 32 (1993), 800. 16 Convention on the Use of Certain Conventional Weapons, 10 October 1980, UNTS, vol. 1342, 137. 17 Protocol IV on Blinding Laser Weapons, 13 October 1995, ILM 35 (1996), 1218. 18 Convention on the Prohibition of Anti-personnel Mines, 18 September 1997, ILM 36 (1997), 1507.

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ing margin.19 But the nuclear powers – which were five in number by 1964 – have resolutely resisted an absolute prohibition against nuclear weapons. They have been willing to go no further than to concede that the general laws of war apply to nuclear weapons, a position which was confirmed by an advisory opinion of the World Court in 1996.20 Nevertheless, some marginal restrictions have been imposed on nuclear weapons. For example, prohibitions against the deployment or use of nuclear weapons in certain areas have been concluded. Antarctica, for example, was completely demilitarized by international agreement in 1959.21 Regarding outer space, a multilateral treaty of 1967 prohibits the placing of weapons of mass destruction in earth orbit or their installation on celestial bodies.22 Similarly, a multilateral treaty of 1971 bars the placing of such weapons on the deep sea-bed.23 Certain regions of the world have also been designated as nuclear weapons-free zones, such as Latin America (pursuant to the Treaty of Tlatelalco of 1967) and the South Pacific (pursuant to the Treaty of Rarotonga of 1985).24 Similar agreements were concluded in the 1990s covering Africa and Southeast Asia.25 More important is the Nuclear Non-proliferation Treaty of 1968, which is an attempt to prevent the acquisition of nuclear weapons by any state other than the then existing five nuclear powers.26 Some inhibitions have also been placed on the ability of states to upgrade their nuclear arsenals. Most notable was the Atmospheric Nuclear Test Ban Treaty of 1963.27 While this did not require either a reduction in nuclear-weapons stockpiles or any restraint on the development of new weapons, it did prevent the nuclear powers from using atmospheric or underwater testing to advance the quality of their arsenals. In 1974, France, which was not a party to the Test-Ban Treaty, gave 19

GA Res. 1653 (XVI), 28 November 1961. Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226, paras. 85–87. 21 Antarctic Treaty, 1 December 1959, UNTS, vol. 402, 71, Art. 1. 22 Treaty on the Use of Outer Space, 27 January 1967, UNTS, vol. 610, 205, Art. 4. 23 Treaty on the Prohibition of Nuclear Weapons on the Seabed, 11 February 1971, UNTS, vol. 955, 115. 24 Tlatelalco Convention, 14 February 1967, UNTS, vol. 634, 281; and Rarotonga Convention, 6 August 1985, UNTS, vol. 1445, 177. 25 Convention on an African Nuclear Weapon Free Zone, 23 June 1995, ILM 35 (1996), 698; and Treaty on the Southeast Asia Nuclear Weapon-free Zone, 15 December 1995, UNTS, vol. 1981, 129. 26 Nuclear Non-Proliferation Treaty, 1 July 1968, UNTS, vol. 729, 161. 27 Treaty Banning Nuclear Weapon Tests in the Atmosphere, 5 August 1963, UNTS, vol. 480, 43. 20

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a legally binding unilateral undertaking to refrain from further atmospheric testing.28 In 1996, a Comprehensive Nuclear Test Ban Treaty was agreed.29 But the failure of the United States Senate to allow American ratification has so far prevented its entry into force.

III. Arms Reduction It was observed above that the summons to the First Hague Conference of 1899 stopped short of even seeking to bring about an actual reduction in existing stockpiles of weapons. Since 1907, however, there have been several occasions in which agreements of this kind have been reached. Perhaps the most noteworthy of these was the Washington Naval Conference of 1921–1922, in which the major naval powers reached agreement on the reduction of their stocks of capital ships. The three principal powers (Britain, the United States and Japan) agreed that, following the reductions, their fleets would be in the famous tonnage ratio of 5-5-3, with Italy and France accepting the smaller ratios of 1.7. Some important inducements, however, were required to obtain agreement. At the insistence of Japan, for example, Britain and the United States agreed to refrain from further fortification of various Far Eastern and Pacific Ocean possessions. And France insisted on excluding a range of ships (cruisers, destroyers and submarines) from the calculation.30 Nevertheless, the agreement did lead to the actual scrapping of weaponry. The United States, for example, sold nearly two dozen battleships for conversion into scrap metal.31 Such an achievement would not be repeated until the final years of the Cold War. In 1972, the United States and the Soviet Union concluded the SALT I agreement, which required the two powers to freeze the number of strategic ballistic missiles at the then existing level.32 Only 1987 were actual reductions were agreed with the conclusion of an Intermediate Nuclear Forces (INF) Treaty by the

28

For details of which, see Nuclear Tests (Australia v. France), ICJ Reports 1974, 253, paras. 34–51. 29 Comprehensive Nuclear Test Ban Treaty, 10 September 1996, available at www. ctbto.org/treaty/treaty_text.pdf. 30 Washington Naval Treaty, 6 February 1922, LNTS, vol. 25, 202. 31 On the difficulties involved in the implementation of the Five-Power Naval Agreement, see Harlow A. Hyde, Scraps of Paper: The Disarmament Treaties between the World Wars, 1988, 127–175. 32 USA-USSR, Salt I Agreement, 26 May 1972, UNTS, vol. 944, 3.

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two major powers.33 Pursuant to this agreement, the United States eliminated 846 missile systems and the Soviet Union 1846. A series of reductions of strategic, i.e., long-range, nuclear missiles began with the conclusion of the START I Treaty of 1991, which placed ceilings on the nuclear stockpiles of the two major powers.34 These entailed a reduction in the American nuclear capacity of some fifteen per cent, and in the Soviet capacity of about twenty-five per cent – though still, it may be noted, leaving the two countries’ arsenals at about the 1982 level. This was followed by the START II Treaty of 1993, which entailed a further reduction of about one-third of the remaining nuclear arms.35 Then in 2002 came a further Treaty on Strategic Offensive Reductions, which brought about still further reductions.36 The end of the Cold War was also marked by agreements on reductions and redeployment of conventional armed forces, through the Treaty on Conventional Armed Forces in Europe (CFE Treaty), agreed by twenty-two countries in November 1990.37 In the five years following its conclusion, over 26,000 battle tanks were eliminated, together with over 16,700 artillery pieces, over 2,600 attack helicopters and over 300 ground-attack aircraft.38

IV. Restricting the Resort to Armed Force It should be noted that, in one important respect, the Second Hague Conference broke important new ground, entirely unanticipated by the 1899 Russian circular. For the first time in the history of international law, the states of the world agreed to restrict their freedom to resort to armed force, if only in a specific and limited subject area – for the recovery of contract debts between states. The prohibition was also of limited character in that it was not absolute. It merely prohibited a

33

USA-USSR, Intermediate Nuclear Forces Treaty, 8 December 1987, UNTS, vol. 1657, 2. 34 USA-USSR, START I Treaty, 31 July 1991, available at www.state.gov/www/global/ arms/starthtm/start/start1.html. 35 Russia-USA, START II Treaty, 3 January 1993, available at www.state.gov/www/ global/arms/starthtm/start2/st2intal.html. 36 Russia-USA, Treaty on Strategic Offensive Reductions, 24 May 2002, ILM 41 (2002), 799. 37 Treaty on Conventional Armed Forces in Europe, 19 November 1990, 30 ILM 30 (1991), 1. 38 US Mission to the OSCE, “Treaty on Conventional Armed Forces in Europe,” 28 January 2008.

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resort to force prior to an attempt to obtain a solution by way of arbitration.39 Nevertheless, the Porter Convention (as the agreement is widely known, after the American delegate who pressed most strongly for it) was, as we may see at least in retrospect, a clear foreshadowing of later and more comprehensive restrictions. The first of these later and broader restrictions were set out in the League of Nations Covenant of 1919.40 Like the Porter Convention – though extending to disputes of all types – the Covenant did not impose an absolute prohibition against the resort to war, but instead required that peaceful-settlement opportunities be exhausted prior to a resort to war. It is well-known that, after the drafting of the League Covenant, two further steps were taken towards the complete prohibition of armed conflict. The first was the Pact of Paris of 1928, which contained an apparently absolute prohibition against the resort to war “as an instrument of national policy.”41 It should be noted that the restriction in the Pact of Paris, like that in the League Covenant, applied only to war and not to measures short of war, such as armed reprisals. In this sense, both of these were more limited in scope than the Porter Convention, which applied to all forms of armed force. The second development after the League Covenant was, of course, the United Nations Charter of 1945, which contained, for the first time, a blanket prohibition against the use of force – i.e., against all forms of interstate armed force, whether in a legal state of war or not, though with an explicit exception allowing force to be used in self-defence.42

V. An Overall Assessment It would be pleasing to report that, in the light of these developments, there has been significant progress along the lines outlined by the two Hague Peace Conferences of 1899–1907. Unfortunately, such a conclusion would not really be in order. On the matter of agreed freezes in military budgets, it may be flatly said that no progress whatsoever has been made in the century since the Hague Conferences. The question, indeed, is not even on the international agenda. In mitigation, it may be said that a budget freeze would be so intricate technically, that it would probably not be feasible to approach arms-control questions from this direction.

39

Porter Convention, 18 October 1907, 205 CTS 250. Treaty of Versailles, 26 June 1919, 225 CTS 188, Arts. 1–26. 41 Pact of Paris, 27 August 1928, LNTS, vol. 94, 57. 42 United Nations Charter, Arts. 2(4), 51. For in-depth analysis of these provisions, see Bruno Simma (ed.), The Charter of the United Nations: A Commentary, 2nd ed. 2002, 112– 135, 788–806. 40

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This is perhaps, then, best regarded as a utopian idea that never had a chance of entering the realm of practical politics. On the specific question of disarmament, it has been noted that, in several instances, some impressive progress has been made. But undue self-congratulation is certainly not in order. For one thing, it is not unusual for progress to look more impressive on paper than it turns out to be in fact. The principal problem here is that countries whose activities are most significant or most worrying, have a habit of declining to become parties to treaties that will restrict their freedom of action. India, Pakistan and Israel, for example, have resolutely declined to become parties to the Nuclear Non-Proliferaton Treaty, thereby robbing it of much of its potential effectiveness. The United States has pointedly declined to ratify the Comprehensive Nuclear Test Ban Treaty, thereby preventing its entry into force. It has also declined to become a party to the Convention Against Land Mines or to Protocol I of 1977 to the Geneva Conventions. Even states that do become parties to agreements are sometimes less than conscientious in complying with them. For example, there have been a number of delays in the implementation of the Chemical Weapons Convention of 1993.43 The fact remains that, for all of the progress – or apparent progress – in the area of arms control, the nations of the world today possess destructive power far beyond what was available to their ancestors of 1907. Even after the welcome, and significant, reductions in nuclear weapons stockpiles in the post-Cold War period, the nuclear powers retain the capacity to wreak devastation on a global scale. Moreover, the attempt to prevent the proliferation of nuclear weapons beyond the circle of the five original nuclear states has proved ineffective in several situations. India and Pakistan both became avowed nuclear-weapons powers in 1998, while North Korea claims to have tested a nuclear weapon in 2006 (North Korea formally withdrew from the Nuclear Non-Proliferation Treaty in 2003). In addition, there is universal belief that Israel possesses a nuclear arsenal, along with widespread fears that Iran may be heading in that direction. Even progress that has supposedly been made has sometimes been reversed. In 2002, for example, Russia formally withdrew from the START II Treaty of 1993, pursuant to the United States’s termination of the 1972 Treaty on ABM restrictions.44 In 2007, the CFE Treaty also fell victim to political wrangling between the 43

See, in this regard, US General Accounting Office “Non-proliferation: Delays in Implementing the Chemical Weapons Convention Raise Concerns about Proliferation,” Doc. No. GAO-04-361 (2004). 44 The United States denounced the Treaty pursuant to a right expressly granted in its terms. Treaty Limiting Anti-Ballistic Missile Systems, 26 May 1972, UNTS, vol. 944, 13, Art. 15(2). The Russian Duma, in its provision for ratification in 2000, had linked the

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two major powers. Problems arose following the conclusion of an Agreement on Adaptation, signed in November 1999, for the adjustment of the CFE Treaty rules to post-Cold War conditions.45 The United States declined to ratify this Adaptation Agreement until it was satisfied with Russia’s performance of various political commitments, chiefly concerning Russian involvement in Georgia and Moldova. In response, Russia announced, in July 2007, that it was suspending further implementation of the CFE Treaty, effective from 12 December 2007. On the broader question of militarization, it is open to some considerable question whether the world could be considered to be less militarized in 2007 than it was in 1907. On this point, questions of definition and measurement present formidable obstacles. To note only one problem, it may well be the case that military expenditures account for a lower proportion of overall economic activity today than they did a century ago (a matter that is itself very difficult to determine). But there has nonetheless been huge growth in military capacities in absolute terms, when a century’s worth of general economic growth, as well as of advancement in military technology, are considered. It is probably more accurate to say that militarization is really, ultimately, a matter of attitude or ethos or political outlook, rather than of fine economic calculation. If we wish to know whether the world is more “militaristic” in 2007 than it was in 1907, we would need to ask such questions as whether statesmen are now more currently inclined to seek military solutions to problems (in the euphemistic phraseology) now than they were a century ago. On this point, answers can be no more than impressionistic. It may be said, very tentatively, that there is a significantly greater reluctance on the part of major powers to resort to armed force against one another than was the case a century ago. The only significant case of armed clash between major powers since 1945 was in Korea in 1950–1953, when American and Chinese forces fought one another. There were, however, some narrow misses – between the United States and the Soviet Union over Berlin the late 1950s and early 1960s, and over missiles in Cuba in 1962, and between the Soviet Union and China in 1969 in the context of frontier dispute. Whether the vision of a nuclear holocaust has been the predominant factor in this comparative moderation, or whether other, more positive factors have been at work is extremely difficult to say. It may be noted that major powers became embroiled in protracted conflicts with lesser ones on two notable occasions: the United States in Vietnam in 1965– START II Treaty to the continuance in force of the ABM Treaty. Strategic Arms Reduction Treaty II (1993), available at www.atomicarchive.com. 45 Agreement on the Adaptation of the Treaty on Conventional Armed Forces in Europe, 19 November 1999, available at www.osce.org/documents/.

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1973, and the Soviet Union in Afghanistan in 1979–1989. In addition, Britain and France became involved in armed conflict with Egypt in 1956, and Britain with Argentina over the Falkland Islands in 1982. There have also been occasional military interventions by the United States in Latin America and the Caribbean, most notably in the Dominican Republic in 1965, in Grenada in 1983 and indirectly, through alliance with local insurgents, in Nicaragua in the 1980s. Armed conflicts between second-rank powers have proceeded apace in the post1945 period, with the Iran-Iraq conflict of 1980–1988 holding the dubious honor of being the most sanguinary. India has been involved in several conflicts – with China in 1962, and with Pakistan in 1965 and again in 1971. Israel has clashed repeatedly with neighboring Arab countries, as well as with non-state enemies. In Africa, Somalia and Ethiopia went to war in the late 1970s, and Ethiopia and Eritrea in 1998. For the most part, though, the growth in violence in the post-1945 world has been in the realm of civil, or internal, conflicts, particularly in Africa. The most notorious cases have occurred in Nigeria, Ethiopia, Sudan, Angola and the Congo, but other serious cases include Uganda, Sierra Leone, Ivory Coast and Liberia – and these are only the most conspicuous examples. It may be the case therefore that the forms and geographical impact of organized violence have altered – and altered very greatly – over the last century. But it is extremely difficult to say whether, in general, the phenomenon of militarization has really diminished, or whether, on the whole, the human race is any less exposed to the risk of war than it was a century ago.

B. The Laws of Armed Conflict The Hague Peace Conferences made significantly greater progress in the codification of the laws of armed conflict than they did on demilitarization. Two of the three conventions concluded at the First Conference were on this subject: One of these provided for the extension of the Geneva Convention of 1863 to naval warfare.46 This earlier Geneva Convention made provision for the immunity of medical personnel from attack during the attending of wounded soldiers.47 The other agreement was a Convention on the Laws and Customs of Land Warfare, com-

46 Hague Convention for Adapting to Maritime War the Geneva Convention of 1864, 29 July 1899, 187 CTS 443. 47 Geneva Convention for the Amelioration of the Condition of the Wounded, 22 August 1864, 129 CTS 361.

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monly referred to by lawyers as the “Hague Rules.”48 The Hague Rules relied very strongly on the Brussels project of 1874, a codification of the laws of land warfare concluded by a group of independent experts (rather than by diplomats representing states, as was the case at the Hague Conferences).49 Both of these conventions were modified in minor ways at the Second Conference.50 As in the previous section, the discussion here will focus on ways in which the world has, over the past century, built on the achievements of the two Hague Peace Conferences. It will then offer some general thoughts on the extent of progress made.

I. War on Land The Hague Rules remain today as the basic set of rules governing the conduct of armed conflict. But they have been substantially enlarged upon in two of the major areas of concern: treatment of prisoners of war, and administration of occupied territories. On prisoners of war, a subsequent Geneva Convention was drafted in 1929 which provided for significantly more detailed rules, although without making any major innovations of principle.51 This Convention in turn was replaced by a yet more detailed and updated version in 1949, in the wake of the Second World War.52 Another Geneva Convention of 1949, on the protection of civilians, contained a substantial expansion of law on the administration of occupied territories, though again without making substantial changes of principle from the Hague Rules.53 The single area in which there has been the greatest change in the laws of war since 1907 has been the protection of civilians. Even here, however, it may be seen that no fundamentally new principle has emerged since the Hague Confer48 Hague Convention with Respect to the Laws and Customs of War on Land, 29 July 1899, 187 CTS 429. 49 See Project of an International Declaration Concerning the Laws and Customs of War, 27 August 1874, AJIL 1 Supplement (1907), 174. 50 Hague Convention IV Respecting the Laws and Customs of War on Land, 18 October 1907, 205 CTS 277; and Hague Convention X on the Adaptation of the Geneva Convention to Maritime War, 18 October 1907, ibid., 359. 51 Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929, LNTS, vol. 118, 343. 52 Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135. 53 Geneva Convention IV Relative to the Protection of Civilians, 12 August 1949, UNTS, vol. 75, 287, Arts. 47–78.

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ences, since, even at that time, it was widely accepted that warfare should be a contest between armed forces only, affecting civilian populations as little as possible. That very point had been made explicit in the St Petersburg Declaration of 1868.54 Since 1907, the major initiatives on this front have been in four major instalments. The first was the Fourth Geneva Convention of 1949, which – as just noted – contained extensive rules on the protection of civilian populations living under belligerent occupation.55 Then, in 1954, came the Hague Convention for the Protection of Cultural Property, with a supplementary protocol concluded in 1999.56 The third major initiative was the agreement, in 1977, on Additional Protocol I to the Geneva Conventions of 1949, which contained a number of provisions protecting civilians and civilian infrastructure from the effects of belligerent operations.57 Then, in 1980, a UN Convention on Conventional Weapons provided various protections for civilian populations from the effects of weapons such as mines, booby-traps and incendiary weapons.58

II. War at Sea At the Hague Conferences, a comprehensive codification of the law of naval warfare was not attempted, although certain aspects of naval war were the subject of several conventions. For example, there was a convention restricting certain types of naval capture, chiefly interference with coastal fisheries and with the carriage of mail.59 Another convention imposed some restrictions on the laying of mines at sea.60 Another contained rules restricting naval bombardment of civilian areas.61 54

Declaration of St. Petersburg, 11 December 1868, 138 CTS 297. Geneva Convention IV on the Protection of Civilians, 12 August 1949, UNTS, vol. 75, 287. 56 Hague Convention for the Protection of Cultural Property, 14 May 1954, UNTS, vol. 249, 240; and Second Protocol to the Hague Convention, 26 March 1999, UNTS, vol. 2253, 172. 57 Protocol I to the Geneva Conventions of 1949, 12 December 1977, UNTS, vol. 1125, 3, Part IV. 58 UN Convention on the Use of Certain Conventional Weapons, 10 October 1980, UNTS, vol. 1342, 137. 59 Hague Convention XI on Certain Restriction on the Right of Capture, 18 October 1907, 205 CTS 367. 60 Hague Convention VIII on the Laying of Submarine Contact Mines, 18 October 1907, 205 CTS 331. 61 Hague Convention IX Concerning Bombardment by Naval Forces, 18 October 1907, 205 CTS 345. 55

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During the inter-war period, some progress was made on the regulation of submarine warfare. There was even support from the United States and Great Britain for an outright prohibition against it, as Russia had proposed in its 1899 circular. But France, Italy and Japan were willing to go no further than to impose certain restrictions on it, which were eventually embodied in the London Naval Protocol of 1936. This provided that, with regard to merchant vessels, submarines were subject to the same rules as surface vessels, regarding visit and search and capture.62 Merchant ships could only be sunk in cases of “persistent refusal to stop” on warning; and, even in that extreme case, passengers, crew and ship’s papers must be put in “a place of safety.” Even these restrictions were widely flouted during the Second World War, by both the Allied and the Axis powers, although only the Axis officials were criminally prosecuted for violations. German Admiral Karl Doenitz was prosecuted at Nuremberg for various war crimes, including the policy of sinking merchant vessels by U-boats without warning. He was convicted of this offence, although there was palpable embarrassment over the fact that American Admiral Chester Nimitz candidly admitted that his forces had done the same in the Pacific War. Doenitz’s consolation (such as it was) was that his twenty-year sentence was assessed without regard to the submarine-warfare violations.63 A comprehensive codification of the law of maritime war did not occur until the 1990s, under the auspices of the International Institute of Humanitarian Law at San Remo. This was drafted, similarly to the Brussels projet of 1874 on land warfare, by a group of individual experts rather than by state negotiators. The fruit of their work, concluded in 1994, was the San Remo Manual on War at Sea.64

III. Neutrality Some special notice should be taken of the law of neutrality, which formed the subject of considerable debate at the Second Hague Conference. Although the Second Conference concluded conventions on neutrality regarding war both on land and at sea, the reality was that much was left unagreed, particularly in the

62 London Naval Protocol on the Rules of Submarine Warfare, 6 November 1936, LNTS, vol. 173, 353. 63 In re Goering, International Law Reports 13 (1946), 218–220. 64 International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 1995.

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vital areas of blockade, contraband, visit and search and unneutral service.65 The United States pressed for the abolition of the capture of private property at sea, while Great Britain caused a stir by dramatically proposing the complete abolition of the entire concept of contraband of war. Neither of these proposals met with acceptance – either at the Conference or since. It was not long, though, before the international community set about attempting to fill the large remaining gaps. The London Naval Conference of 1908–1909 brought together the ten major maritime powers and resulted in an agreement that nearly – but not entirely – covered the outstanding areas.66 In the event, however, the Declaration never entered into force, as a result of the failure of Great Britain to ratify it. An attempt was made to apply the rules of the Declaration to the hostilities of 1914–1918, but this proved unsuccessful. An attempt by the United States and Britain, during the inter-War period, to conclude a bilateral treaty on a range of outstanding issues of neutrality law came to nothing.67 That issues of neutrality at sea continue to be of importance became apparent during the Iran-Iraq war of 1980–1988, when both sides interfered substantially with neutral trade with the other. Eventually, with the drafting of the San Remo Manual in 1994, agreement was finally reached on a range of maritime neutrality issues.68 But these agreed rules, it should be appreciated, have yet to be put the sort of test to which the First World War subjected the ill-fated Declaration of London.

IV. An Overall Assessment Any pride that we may take in the impressive development of the laws of war since 1907 must be heavily tempered by some countervailing considerations. Most outstandingly, the increased concern of lawyers over the fate of civilians has signally, and tragically, failed to keep pace with developments in the actual conduct of armed conflict. One of the most outstanding features of warfare in the 20th 65 See Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, 205 CTS 299; and Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War, 18 October 1907, 205 CTS 395. 66 Declaration of London, 26 February 1909, 208 CTS 338. On this initiative, see Stephen C. Neff, The Rights and Duties of Neutrals: A General History, 2000, 136–41. 67 On this initiative, see Barry D. Hunt, British Policy on the Issue of Belligerent and Neutral Rights, 1919–1939, in: Craig L. Symonds (ed.), New Aspects of Naval History, 1981, 279–290. 68 San Remo Manual (note 64), paras. 14–35, 67–71, 93–108, 113–132, 146–158, 166, 168.

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century was the remorseless increase in the proportion of wartime casualties accounted for by civilians. One of the problems is the steady advance of military technology. But this advance in technology is also deeply ambivalent. On the one side, scientific and technological innovations produce ever more exotic ways to kill people. Even the most visionary of the delegates to the Hague Peace Conferences would have been astonished at the marvels that 21th century weaponry could perform, particularly in the way of delivering destructive power over vast distances. At the same time, the increased accuracy of modern weapons offers some hope – at least in theory – for confining military destruction more tightly to military targets as opposed to civilian ones. There should be no illusions, however, about a technological solution to the daunting challenge of dealing with civilian casualties. Low-technology weaponry has probably been responsible for the overwhelming share of civilian suffering in war. Knives proved to be all too serviceable a weapon in the mass slaughter that took place in Rwanda in 1994. Conventional firearms in the hands of brutal and undisciplined soldiers are easily responsible for the vast bulk of civilian suffering in warfare. The Balkan wars of the 1990s as well as the conflicts in Sierra Leone, Liberia and the Congo in the 1990s and 2000s provide the most obvious illustrations. In general, there has been a shameful absence of real progress in the area of the humanization of warfare in the century since the Hague Conferences.

C. The Peaceful Settlement of Disputes Of the three pillars, the one in which the world has fared most successfully since 1907 has been the peaceful settlement of disputes. The two Hague Conferences themselves, it must be admitted, made only a modest start. The First Conference established the Permanent Court of Arbitration (PCA), the name of which risks causing confusion.69 The “permanent” part is justified, as this organization continues to exist and to hear cases to the present day. Calling it a “court,” however, risks being somewhat misleading, as that might suggest that it was a permanent body with a stable membership. In reality, the so-called Permanent Court of Arbitration comprises a pool of international law experts who are available for service, when required, as judges or arbitrators on an ad hoc basis.

69 Hague Convention on the Pacific Settlement of International Disputes, 29 July 1899, 187 CTS 410.

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Since 1907, there have been various other initiatives. The first was the ill-fated Central American Court of Justice, which was established in the very wake of the Second Hague Peace Conference.70 Its historically distinguishing feature was that private parties, as well as states, were able to litigate before it. Unfortunately, this Court rendered controversial decisions in 1916–1917 concerning the legal status of the Gulf of Fonseca, leading the United States to lose confidence in it and Nicaragua to withdraw from participation. That led to the demise of the body.71 More successful was the Permanent Court of International Justice, which was established by the League of Nations in 1920. Unlike the PCA, this was a permanent body. Moreover, it heard a significant number of cases during the period of its existence between the two World Wars, some of which concerned disputes that were politically highly charged. Outstanding on this score was the Austro-German Customs Union case of 1931.72 It ruled, on the casting vote of the President of the Court, Judge Kellogg of the United States (of Pact of Paris fame), that the envisaged union of the Austrian and German customs services would constitute a violation of the treaty engagements that were then binding on the two countries. The decision, however, was of limited impact. For one thing, the two countries had already decided against proceeding by the time the decision, an advisory opinion, was rendered. More dramatically, a complete merger of the two countries was brought about by the initiative of the Nazi government in Germany in 1938, in the lead-up to the Second World War. Other decisions in areas of high political controversy included rulings on minority rights and autonomy arrangements, and on the always tense relations between Germany and Poland, as well as between Poland and the Free City of Danzig.73 70

Convention for the Establishment of a Central American Court of Justice, 20 December 1907, 206 CTS 78. 71 For a brief account of the circumstances surrounding the demise of the Court, see Lars Schoultz, Beneath the United States: A History of US Policy toward Latin America, 1998, 224–227. 72 Customs Regime between Germany and Austria, PCIJ (1931), Ser. A/B, No. 41. 73 For cases on disputes over minorities and autonomy issues, see Interpretation of the Statute of the Memel Territory, PCIJ (1932), Ser. A/B, No. 49; and Minority Schools in Albania, PCIJ (1935), Ser. A/B, No. 64. For cases on German-Polish relations, see German Settlers in Poland, PCIJ (1923), Ser. B, No. 6; Access to German Minority Schools in Upper Silesia, PCIJ (1931), Ser. A/B, No. 40; Polish Agrarian Reform and German Minority, PCIJ (1933), Ser. A/B, No. 64. For cases on Poland-Danzig relations, see Polish Postal Service in Danzig, PCIJ (1925), Ser. B, No. 11; Access to Danzig of Polish War Vessels, PCIJ (1931), Ser. A/B, No. 43; Treatment of Polish Nationals in the Danzig Territory, PCIJ (1932), Ser. A/B, No. 44; and Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, PCIJ (1935), Ser. A/B, No. 65.

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It should also be mentioned that the inter-War period was a time of intense activity in international arbitration. Several arbitral panels were established to deal with various issues that arose out of the 1914–1918 conflict.74 In addition, several mixed-claims commissions were established to arbitrate a range of disputes between countries. Mexico, for example, concluded claims agreements of this kind with the United States, Britain, France and Germany. In addition, the United States and Panama concluded a mixed-claims treaty.75 These tribunals went on to produce extensive and valuable case-law.76 After the Second World War, the pace in international litigation slowed down very considerably. A successor to the PCIJ was established: the International Court of Justice (ICJ or World Court), which was formally designated as an organ of the newly established United Nations. But the ICJ was relatively inactive in the decades immediately following its establishment. Moreover, in a number of the cases that were brought to it, the Court, for various reasons, often found itself unable to resolve the disputes.77 Around 1980, though, the pace began to quicken again in the dispute settlement area. For one thing, the ICJ began to attract more business, sometimes in politi74 See, for example, Germany-USA, Claims Convention, 10 October 1922, LNTS, vol. 88, 308. See also Austria-Hungary-USA, Claims Convention, 26 November 1924, LNTS, vol. 48, 69. 75 Mexico-USA, General Claims Convention, 8 September 1923, 43 Stat. 1730; Mexico-USA, Special Claims Convention, 10 September 1923, 43 Stat. 1722; FranceMexico, Claims Convention, 25 September 1924, LNTS, vol. 79, 417; Germany-Mexico, Claims Convention, 16 March 1925, LNTS, vol. 79, 229; Great Britain-Mexico, Claims Convention, 19 November 1926, LNTS, vol. 85, 51; and Panama-USA, 28 July 1926, LNTS, vol. 138, 120. 76 For reports of decisions in the Germany-USA arbitrations, see Reports of International Arbitral Awards (RIAA), vols. 7 and 8. For reports of decisions in the American arbitrations with Austria and Hungary, see RIAA, vol. 6, 191–292. For Mexico-USA arbitrations, see RIAA, vol. 4. For reports of decisions in the France-Mexico arbitrations, see RIAA vol. 5, 307–560. For reports of decisions in the Germany-Mexico arbitrations, see RIAA, vol. 5, 561–95. For reports of decisions in the Great Britain-Mexico arbitrations, see RIAA, vol. 5, 1–306. For reports of decisions in the Panama-USA arbitrations, see RIAA, vol. 6, 293–386. 77 See, for example, Ambatielos (Greece v. United Kingdom) (Preliminary Objections), ICJ Reports 1952, 28; Anlgo-Iranian Oil Co. (United Kingdom v. Iran) (Preliminary Objections), ICJ Reports 1952, 93; Monetary Gold Removed from Rome (Italy v. France, United Kingdom and USA) (Preliminary Question), ICJ Reports 1954, 19; Certain Norwegian Loans (France v. Norway), ICJ Reports 1957, 9; Interhandel (Switzerland v. USA) (Preliminary Objections), ICJ Reports 1959, 6; and Aerial Incident of 27 July 1955 (Israel v. Bulgaria) (Preliminary Objections), ICJ Reports 1959, 127.

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cally controversial areas. An important landmark here was the case brought by the United States against Iran, on the holding of the diplomatic hostages in Tehran in 1979–1981.78 The Court rendered a clear judgment, in favor of the United States, although in the end the release of the hostages was effectuated by diplomatic negotiation.79 Another controversial case was brought by Nicaragua in the 1980s against the United States, for various measures of armed force against it, as well as for the rendering of aid by the United States to Nicaraguan insurgents and the application of economic measures.80 On the claims relating to the use of force, Nicaragua’s claims succeeded, although in this case too the eventual resolution came about by agreement between the parties, following a change of government in Nicaragua. Other high profile cases heard by the ICJ included the Nuclear Weapons Advisory Opinion in 1996 – which proved to be a less than definitive resolution of the issue –, a claim by the Congo against Belgium for Belgium’s issue of an Arrest Warrant against the Congolese foreign minister for the alleged commission of grave international crimes, a claim by Iran against the United States for the destruction of Oil Platforms in the course of the Iran-Iraq conflict of 1980–1988, an advisory opinion on the lawfulness of Israel’s Construction of a Wall in areas controlled by it, a claim by Serbia against ten NATO countries for their Use of Force in Kosovo in 1999 and a claim by Bosnia against Serbia for violation of the Genocide Convention during the civil conflict of 1992–1995.81 Outside the context of the ICJ, the post-1945 period has been an active one. One of the most striking developments was the series of arbitrations undertaken by Iran and the United States, beginning in 1981, pursuant to the agreement between the two countries to resolve the hostage crisis.82 The jurisprudence of the Iran-U.S. Claims Tribunal made very significant clarifications and advances in a number of areas of international economic law, as well as in such areas as state responsibility law.83 Another important panel was established in 2000, by agreement between

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Tehran Hostages (USA v. Iran), ICJ Reports 1980, 3. Algiers Declaration, 19 January 1981, ILM 20 (1981), 224. 80 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), ICJ Reports 1986, 14. 81 Legality of the Threat or Use of Nuclear Weapons (note 20), 226; Arrest Warrant (Congo v. Belgium), ICJ Reports 2002, 3; Oil Platforms (Iran v. USA), ICJ Reports 2003, 161; Consequences of the Construction of a Wall, ICJ Reports 2004, 136; Legality of the Use of Force (Serbia v. Ten NATO States, ICJ Reports 2004, 279; and Application of the Genocide Convention (Bosnia v. Serbia), 26 February 2007, General List No. 91. 82 Algiers Declaration (note 79). 83 For an invaluable study of the case law of the Iran-US Claims Tribunal up to 1996, see George H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal, 1996. 79

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Ethiopia and Eritrea, to resolve a range of claims in the wake of the armed conflict that broke out between them two years earlier. This panel, too, has produced a number of valuable decisions.84 In several specialized subject areas, dispute resolution systems have been set up. The area of international trade law is a notable example. From its inception in 1947, the General Agreement on Tariffs and Trade had provisions for the resolution of disputes.85 But it was only with the establishment of its successor body, the World Trade Organization, in 1995 that the volume of case law in the economic area began to swell significantly.86 Parallel to this is the International Center for the Settlement of Investment Disputes, under the auspices of the World Bank, which deals with investment matters specifically.87 Another specialized area of dispute settlement concerns disputes in the area of the law of the sea. The UN Convention on the Law of the Sea, concluded in 1982, provided for the establishment of an International Tribunal on the Law of the Sea, which began operation in Hamburg in 2000.88 Finally, note should be taken of two areas of international litigation that would have astonished the delegates to the two Hague Conferences: international human rights, and international criminal law. In both of these, the distinguishing feature is the central role played by individuals in the process, in the one case as claimants and in the other as defendants. The member states of the Council of Europe, in 1950, drafted the European Convention on Human Rights, which provided for a Commission and a Court of Human Rights, both meeting in Strasbourg, to which both states and (in certain circumstances) individuals could bring claims, following exhaustion of local remedies.89 The Commission has since been dismantled as part of a reorganization plan, but the Court continues in operation with a huge case law volume. A similar initiative exists for the members of the Organization of American See also Wayne Mapp, The Iran-United States Claims Tribunal: The First Ten Years, 1981–1991, 1993. 84 Eritrea-Ethiopia Agreement on Peacebuilding, 12 December 2000, UNTS, vol. 2138, 330. For the full case law of the Eritrea-Ethiopia Claims Commission, see pca-cpa.org/ showpage.asp?pag_id=1151/. 85 General Agreement on Tariffs and Trade, 30 October 1947, UNTS,vol. 55, 194. 86 On the WTO dispute-settlement system, see generally Federico Ortino/Ernst-Ulrich Petersmann (eds.), The WTO Dispute Settlement System, 1995–2003, 2004. 87 See generally Lucy Reed/Jan Paulsson/Nigel Blackaby, Guide to ICSID Arbitration, 2004. 88 UN Convention on the Law of the Sea, 10 December 1982, UNTS, vol. 1833, 3, Annex VI. 89 European Convention on Human Rights and Fundamental Freedoms, 4 November 1950, UNTS, vol. 213, 221.

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States, since the entry into force in 1978 of the American Convention on Human Rights.90 A similar system has been in operation in Africa since the 1980s, when an African Charter on Human and Peoples’ Rights was adopted, with an African Commission on Human and Peoples’ Rights to adjudicate individual applications.91 In 2004, an African Court of Human and Peoples’ Rights began operation.92 At the universal level, claims by individuals against states for human rights violations became possible in 1976, with the entry into force of the International Covenant on Civil and Political Rights, together with its Optional Protocol, which provided for bringing of claims by individuals to a monitoring body called the Human Rights Committee.93 Although the Human Rights Committee is not, strictly speaking, a court, its decisions have had an important impact on the development of the international law of human rights, and have been referred to by the World Court.94 Two other treaty monitoring bodies hear and adjudicate international claims by individuals on a similar basis: the Committee for the Elimination of Racial Discrimination (established by the UN Convention on Racial Discrimination of 1965) and the Committee Against Torture (established by the UN Convention Against Torture of 1984).95 The delegates to the Hague Conferences would have been equally astonished to learn of the establishment of international criminal tribunals, for the trial of individuals for violations of international law. Gestures were made in this direction – to put the matter no more strongly – at the conclusion of the First World War, in two contexts. One was that the Treaty of Versailles made provision for the trial of Kaiser William II of Germany by a special tribunal, for (somewhat vaguely) “a

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American Convention on Human Rights, 22 November 1969, UNTS, vol. 1144, 123. On the inter-American human rights system, see generally D. J. Harris/Stephen Livingstone, The Inter-American System of Human Rights, 1998. 91 African Charter on Human and Peoples’ Rights, 27 June 1981, UNTS, vol. 1520, 217. On the African human-rights system, see generally Malcolm D. Evans /Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice 1986– 2006, 2d ed. 2008. 92 The Court was established by a Protocol to the African Charter on Human and Peoples’ Rights, 11 July 2003, available at www.africa-union.org/root/AU/Documents/. 93 UN Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, 171; and Optional Protocol to the Civil and Political Covenant, 16 December 1966, UNTS, vol. 999, 302. 94 See Consequences of the Construction of a Wall (note 81), 136, para. 109. 95 See UN Convention for the Elimination of Racial Discrimination, 7 March 1966, UNTS, vol. 660, 195; and UN Convention Against Torture, 10 December 1984, UNTS, vol. 1465, 85.

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supreme offence against international morality and the sanctity of treaties.”96 In this case, no prosecution actually took place, as the Netherlands, where the Kaiser took refuge after the German Revolution of 1918, refused to extradite him.97 In addition, Britain undertook the establishment of criminal trials for persons responsible for the Armenian massacres in Turkey, which had taken place during the war. Pursuant to the British initiative, one hundred eight suspects, including the grand vizier of the 1913–1917 period, were actually arrested. In April 1920, a special Turkish court martial convicted two prominent officials for atrocities against the Armenians – described by the court as acts “against humanity and civilization.” One was sentenced to death and actually executed, the other to fifteen years of hard labor. There was even a trial in Turkey, established by Ottoman authorities, of the wartime Turkish leadership, resulting in the conviction of seven persons. Only one, however, was in the custody of the tribunal and available for punishment. Provision for further trials was made in the Treaty of Sèvres, but these never took effect.98 Only after the Second World War did international criminal trials actually take place for offences other than war crimes. In the post-War trials in Nuremberg and Tokyo in 1946–1948, German and Japanese government officials were charged with the novel crime of instigating aggressive war, “crimes against the peace” in the somewhat quaint-sounding phraseology employed in the Nuremberg Trials. At Nuremberg, twelve defendants were convicted on this charge and four acquitted. At the Tokyo Trials, twenty-four defendants were convicted on various charges of aggressive war, and one was acquitted.99 In addition, at Nuremberg, sixteen defendants were convicted of the then novel charge of crimes against humanity with two acquittals.100 96

Treaty of Versailles, 26 June 1919, 225 CTS 188, Art. 227. On William II’s refuge in the Netherlands and the Dutch refusal to extradite him, see James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, 1982, 98–112. 98 Treaty of Sèvres, 10 August 1920, Arts. 226–230, available at www.hri.org/docs/ sevres/. For an informative account of this little known initiative, see Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 2000, 147–205. 99 On the Tokyo trials, see Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951, 1979; Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials, 1989. For a very critical assessment of the trials, see John W. Dower, Embracing Defeat: Japan in the Wake of World War II, 1999, 443–474. The charges at the Tokyo Trials did not include a designated category of crimes against humanity. 100 On the Nuremberg Trials, see Bradley F. Smith, Reaching Judgment at Nuremberg, 1977; Ann Tusa/John Tusa, The Nuremberg Trial, 1983; Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, 1992; Joseph E. Persico, Nuremberg: Infamy 97

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After Nuremberg, the pace of progress in international criminal law slackened dramatically. The International Law Commission (ILC) undertook to draft an international code of crimes, under the grandiose title of “Draft Code of Offences Against the Peace and Security of Mankind.” But serious obstacles soon arose, particularly the difficulty of defining aggression. These led to the quiet shelving of the matter in the mid-1950s.101 There was some revival of interest in the subject in the early 1980s, when the ILC recommenced consideration of the project, finally producing the Draft Code in 1996.102 By that time, however, the impetus for the development of international criminal law came from an altogether different quarter: from the civil wars that accompanied the break-up of Yugoslavia in the 1990s, in the wake of the Cold War. The atrocities that were committed, often in full view of the world’s press, led to a major public outcry, which in turn stimulated the UN Security Council to set up a tribunal to deal with international crimes committed in the course of those conflicts. This body began functioning in 1993 and, by 2008, was nearing the completion of its task.103 In 1994, a second tribunal was established by the UN Security Council, again under its enforcement powers. This one dealt with the massacres committed in Rwanda in 1994.104 The Rwanda Tribunal had the distinction of handing down the first convictions for the crime of genocide since the Nuremberg Trials.105 A development that is potentially of great interest for the future is the formation of a Court of Justice of the African Union. When in operation, this body will take over the current functions of the African Court on Human and Peoples’ Rights and also deal with a number of additional matters of a potentially very broad-ranging character. These include the adjudication of any question of international law and of any allegation of a breach of an obligation, whether of treaty or customary origin, owed to a state party. Moreover, the jurisdiction of the Court may be

on Trial, 1994; and Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 2000, 147–205. 101 The project was discontinued pursuant to GA Res. 897 (IX), 4 December 1954. 102 For the text of the Draft Code, together with a commentary, see 2 (pt. 2) Yearbook. of the International Law Commission 1996, vol. 2, part 2, UN Doc. A/CN.4/SER.A/1996/ Add.1 (Part 2), 17–56. 103 For the establishment of the Yugoslavia Crimes Tribunal, see SC Res. 808, 22 February 1993. On the Tribunal generally, see Rachel Kerr, The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy, 2004. 104 SC Res. 955, 8 November 1994. 105 See Prosecutor v. Akayesu, ICTR, 2 September 1998, paras. 492–562, 672–675, 698–734.

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expanded yet further by resolution of the African Union Assembly.106 Developments in this area will be watched with very great interest by the international community generally.

An Overall Assessment Of the three major subject areas, this is the one in which the most progress has been made over the past century. But here too, it is an open question as to whether the gain has really been proportionate to the growth in the challenges. The scope for disputes between states to arise is surely greater now, by far, than it was in 1907, if for no other reason than that there has been a huge growth in the number of countries. But there has been a vast growth, too, in the number of subject areas of international concern. The fields of trade and investment, environmental protection and human rights are only the most obvious examples, together with additional challenges posed by new technologies of communication and transport. In addition, it may be noted that the holy grail, as it might be termed, of dispute settlement – the compulsory settlement of disputes – remains a distant dream in 2007, as in 1907. The Advisory Committee of Jurists, which was entrusted with the task of drafting a statute of the PCIJ in 1920, favored compulsory settlement and provided for it in the draft Statute which it concluded. In so doing, the Committee expressly stated its initiative to be “in the spirit of the Conferences of the Hague.”107 The Committee’s decision, however, was reversed by the League of Nations Council.108 Instead of compulsory settlement, a decidedly awkward hybrid arrangement was devised, for “voluntary” compulsory jurisdiction – i.e., states were given a facility to make unilateral, and voluntary, declarations accepting compulsory jurisdiction of the court vis-à-vis any other states which chose likewise. This “Optional Clause” system, as it has become known, still prevails today. At the end of 2007, some sixty-five states had Optional Clause declarations in force, although only one of the five permanent members of the UN Security Council, namely Britain, was amongst them. But this bare figure overstates the extent to which states have accepted compulsory jurisdiction, since many of the Optional 106

Protocol of the Court of Justice of the African Union, 11 July 2003, available at www.africa-union.org/root/AU/Documents/. 107 Art. 33 Draft Statute of the PCIJ, in: Procès-verbaux of the Proceedings of the Committee (of Jurists), 16 June – 24 July 1920, 1929, 726–729. 108 Report by Bourgeois to the 10th Session of the Council, 27 October 1920, in: League of Nations, Official Journal 1920, 14–15 (separate pagination for this meeting).

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Clause declarations contain important limitations and conditions which greatly reduce their practical efficacy. It is perhaps best to conclude, then, that the world has made impressive progress over the past century in making various facilities for peaceful settlement of disputes available to states. But the willingness of states to accept judicial resolution of disputes remains now, as formerly, heavily conditional upon prevailing political realities. In that important respect, change over the past century has been rather modest.

D. Some Final Thoughts Only a few final observations are possible in the present context – and these must necessarily be highly tentative in character. In the century since the Hague Peace Conferences, humanity certainly has made many achievements in which it can take justified pride. In the areas of science and technology, and particularly of medical advances, the century can be termed a veritable golden age. Economic advancement, too, has been impressive, even for the very poorest portions of the planet. Progress in the political and legal spheres is necessarily more difficult to define and measure; but there can be no doubt that, in these areas too, there is much evidence of progress over the century. For example, the theory and practice of democracy are far more deeply rooted today than they were a century ago, as are ideas of equality and non-discrimination and respect for fundamental human rights – though there is no denying that vast improvement is urgently needed in these areas. In the three spheres of activity covered by the Hague Peace Conferences, however – militarization and armaments, laws of war and peaceful settlement of disputes – the world of 2007 must be said, in contrast, to look discouragingly similar to that of 1907. To be sure, if the delegates to the Hague Peace Conferences were to return to earth, they would be surprised at some of the developments in areas related to their deliberations. Two in particular, it is suggested, would strike them. The first would be the various ways in which individuals now participate in international adjudication – as claimants in the human rights sphere, and as defendants in international criminal trials. These areas had not, however, been central to the discussions at the Hague Conferences. The second innovation that would forcefully strike the delegates would be the general prohibition in the UN Charter of the resort to force in international relations. This extends so far beyond the strictures of the Porter Convention as to take international law into what can fairly be termed radically new territory. Unfortunately, what we cannot so confidently

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boast of is consistent adherence to this worthy norm on the part of the states of the world. In perhaps a discouragingly large number of respects, there have been no major conceptual advances in the last hundred years. Consider, for example, questions of placing legal limits onto new weapons technologies, of safeguarding civilians from belligerent operations, of fixing the rights and duties of neutrals, of encouraging arbitration and adjudication as substitutes for war – all of these subjects, which are so urgently alive at the present day, continue to be discussed in terms that would have been perfectly comprehensible a hundred years ago. That might be thought to be a very sad commentary on the “progress” made in the Twentieth Century. Those of a more optimistic temperament may prefer to regard this state of affairs as an indication of how prescient and forward-looking our forebears of the 19th century were. Perhaps that is so. Nevertheless, if it belonged to our professional ancestors to think bold thoughts and to articulate ideals that turned out, so often, to be in advance of their times, then it must be said to have been our mission, over the past century, to put those visions into operation. In this respect, sadly, international lawyers have more commonly played the part of the Red Queen in Alice in Wonderland than of the philosopher-kings of Plato’s Republic. We have been desperately running merely to keep from falling behind the rush of events that the last hundred years have unleashed. That we are even still in the race is something of an achievement, but only of a pitifully limited sort. Or perhaps we might be likened to Sisyphus, forever straining to push juridical boulders up technological, political and ideological hillsides. Our strength may have grown in the course of the century – but, alas, so has the steepness of the hills, leaving us to wonder whether we are gaining or losing. If only to avoid concluding on too pessimistic a note, it may be cautiously suggested – or perhaps merely hoped – that, if the real struggle is ultimately one of attitudes and frames of mind, more than of throw-weights of weapons or fine details of jurisdictions of tribunals and the like, then perhaps progress has been made. We may take note of Kaiser William II’s response when, in the course of the First Hague Conference, he was informed that Germany risked being isolated if it stood against the idea of arbitration, which commanded considerable support both from the general public and from other delegations. The Kaiser’s reaction was curtly to inform his foreign minister that, whatever might be agreed publicly, he would place his faith, in the realm of practical politics, on “God and my sharp sword” (possibly not in that order). Of the Hague conferees, he dismissively noted, “I shit on all their decisions.”109 109

Tuchman (note 4), 310.

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It may be surmised that, today, it would be more difficult for national leaders to operate with quite such frank contempt for the rule of law. It may be that leaders today have some covert sympathy with the views of the doughty Kaiser. But it is likely that at least the idea – if not necessarily the reality – of the rule of international law does have a stronger grip on the world at large today than it did in 1907. If concrete progress since that time, on the particular subjects of the two Conferences, has been modest, we can take some comfort that the visions and ideals of that time remain stubbornly alive, despite all the battering inflicted upon them by a century of violence and savagery.

Weapons of Mass Destruction: Reduction of Stockpiles and Non-Proliferation By Ian Anthony When Russian Foreign Minister Count Mouravieff handed invitations to an international conference to the diplomatic representatives in 1898, the general logic of the proposal was that all Governments should work towards maintaining a general peace and reducing the burden of maintaining excessive armaments. The Hague Peace Conferences in 1899 and 1907 provide an interesting point of departure for a discussion of disarmament 100 years on from the second meeting. The Hague Conferences were the first international gatherings at which something approximating an international system was represented in the discussion of security. Whereas previous gatherings brought major powers together to discuss “high politics” in an exclusive club, minor powers were invited to the Hague for the first time. Moreover, the 24 non-European states outnumbered their European counterparts among the 44 countries present. At the same time, the main players in key global institutions would be recognizable to a diplomat transported through time from 1907 to today. The USA, Russia, Germany, Britain, France and Japan framed the debate and determined the outcomes together with a coalition of European states (at that time united under the Habsburg dynasty rather than the European Union). After the Hague Conferences events demonstrated the dangers that can arise if great powers simply promote an agenda tailored to their objectives and expect others to live with it regardless of its compatibility with their own interests. Today we are again living in a period of big power self-interest, in which countries that are able to do so follow and promote their national agendas. “Multilateralism” is in reality restricted to cooperation to implement national policies whenever other countries can be persuaded to go along. The wider political context has always conditioned what can be mutually agreed and codified through arms control and disarmament. The 1907 meeting achieved little in the area of disarmament (and nothing in the area of quantitative limits) because of the dysfunctional aspects of big power relations. At the second Hague Conference Britain put forward proposals that would have preserved naval

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supremacy. However, assertions that the Royal Navy was preserving the common interest of states in free trade and did not threaten any state or group of states cut little ice with other governments and the proposals were rejected by states that fully intended to challenge the British at sea. I do not want to over-dramatize the risks – though some contemporary observers do see political and economic dangers on the horizon arising out of changes in the relative balance between different actors in the world and the failure to build a stable multilateral system. Simply to note that it remains an axiom that arms control agreements must be grounded in the assessment of the political and economic causes that lie behind the maintenance of armies, navies and air forces. If there are some echoes from the past, there are also differences today. In the past strong states crafted proposals to preserve their advantages at the lowest financial cost. Recently it has more often been weaker states that have tried to limit the capacities of the strongest power – the United States. The US – whose military spending is now equivalent to that of all other countries combined – is content to live without restraining agreements and political leaders push for further increases in military spending. Arms control has mainly aimed to create a stable set of self-restraining measures applied by states to the military equipment used by their own armed forces or other organs of state power. However, recent efforts have focused on controlling the military programs of other states by monitoring materials, technologies and tools that are the precursors to military equipment and attaching conditions to the their acquisition. These conditions seldom govern the acquisition programs of the states applying them to foreigners. An important new challenge has been to develop a system to deny certain malicious non-state actors access to the materials, equipment and instruments that they need in order to carry out mass impact terrorist attacks. These items include a range of hazardous materials that are unlikely to have been considered weapons in the past and that therefore fall outside existing arms control instruments. The relationship between legal and statutory processes on the one hand and forms of non-legal and non-statutory regulation has also been changing. Whereas arms control was dominated in the past by inter-governmental legal agreements, “soft law” approaches that emphasize political commitments are now being examined to see if they offer a more flexible approach to regulation than agreements based on treaties. A much wider set of items need to be controlled under the adapted approach as arms control mainly addressed unambiguously military items such as nuclear weapon delivery systems, tanks or chemical weapons that were under the owner-

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ship and control of states. However, effective non-proliferation requires control over items that are, by and large, owned and controlled by private actors and used extensively in legitimate peaceful commerce. Therefore, in order to achieve their objectives, regulators are increasingly trying to mobilize non-state resources through public-private partnerships and by working with other non-governmental actors. As the developments sketched above are leading to a process that is much wider in its scope of coverage and participation, so new challenges are created for the administration of the discussion and the implementation of any decisions arrived at. Broadly speaking, the balance between traditional diplomatic tools such as international conferences and other types of activity has been changing, and the processes used for communication and coordination within the international system are very different today from the model followed at the Hague Conference. The use of ad hoc cooperation networks of different kinds (including networks among states and networks that include both state and non-state actors) has become an important part of a modern definition of multilateralism. Networks may be established within international, global or regional institutional frameworks or they may bring together more ad hoc collections of like-minded states. These networks extend beyond the traditional contact between diplomats to include networks among experts in different professional and technical communities. These transnational networks of experts (which may be governmental or a mix of governmental and non-governmental) define issues for decision-makers, elaborate what the main problems are and make proposals about remedial measures. It can be argued that decision makers arriving at a high-level conference nowadays have far less room for manoeuvre than their counterparts in 1907.

A. Current Status of Reductions of Stockpiles The legal framework for arms control in relation to nuclear, biological and chemical weapons has an impressive reach in terms of participation. At the moment, Israel is the only country that remains completely outside the system of global treaties that prohibit the spread of nuclear weapons and that ban biological and chemical weapons. Even that statement needs to be qualified because Israel has signed the Chemical Weapons Convention. Recent experience has demonstrated that there can be very practical outcomes from negotiated arms reductions. In the decade after 1995, thousands of nuclear weapon delivery systems were destroyed along with many tens of thousands of tanks and artillery pieces and approaching three million chemical munitions.

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Roughly 7,000 nuclear weapons are believed to have been removed from their delivery systems and dismantled. Apart from this very direct outcome, negotiations and agreements have also contributed to achieving broader objectives. The multilateral, regional and bilateral agreements that establish limits on types and quantities of arms of various kinds have played a useful role when applied in combination with activist but peaceful foreign policies and the maintenance of residual military capacities. For many years during the Cold War, stability in Europe was based on the fear inculcated by massive military forces. The collapse of the Soviet system set the stage for a discussion of how to build a lasting peace through progressive economic and political integration. This process has reached the point where experienced and senior officials now describe Europe as a “post-modern society” where no single country dominates, but each has a share in government and in which governing principles are legal, not national or ethnic. Arms reductions were one factor enabling political and strategic transformation and helping to fix the gains made securely in place. By the middle of the 1990s, the general tendency appeared to be towards deep reductions in the main nuclear weapon arsenals achieved in a predictable and cooperative manner under full monitoring and supervision. Breakthroughs in arms control and disarmament in the late 1980s and early 1990s included the agreement to eliminate all Intermediate Nuclear Forces1 and the first Strategic Arms Reduction Treaty (START I)2 which mandated reductions in strategic offensive nuclear delivery systems. A START II3 was negotiated that would have both further reduced the numbers of strategic weapons and eliminated long-range land-based missiles with multiple warheads entirely. In March 1997, Presidents Clinton and Yeltsin agreed that the United States and Russia would negotiate a START III treaty as soon as START II entered into force to draw down the numbers of strategic nuclear warheads, promote irreversible weapons elimination and develop new types of transparency measures. The Presidents also agreed to explore bringing

1

Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF Treaty), 1987, available at http://www.state.gov/www/global/arms/treaties/inf1.html. 2 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms, 1991, available at http://www.state.gov/www/global/arms/starthtm/start/toc.html. 3 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms, 1991, available at http://www.fas.org/nuke/control/start2/text/index.html.

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long-range, nuclear-armed, sea-launched cruise missiles and tactical nuclear weapons into the discussion of arms control.4 Within the wider international community, it was understood that nuclear disarmament could not be achieved in a short space of time, and generally it was recognized that managing the final stages of disarmament would require leaders to address new and unknown challenges. Nevertheless, it seemed possible that a long-term “glide path” towards the complete elimination of nuclear weapons in the arsenals of states might be worked out. Two important measures were also anticipated that could make the gains in arms control irreversible when applied in conjunction. First, in 1996 the UN General Assembly adopted the Comprehensive Nuclear-Test-Ban Treaty (CTBT)5 that prohibits nuclear explosions and requires states that bring the treaty into force to criminalize assistance to carrying out of a nuclear explosion.6 Second, in 1995 the governments that participate in the Conference on Disarmament produced an informal agreement calling for an Ad Hoc Committee on Fissile Material Cut-Off to negotiate a treaty banning the production of new fissile material for nuclear explosive purposes.7 With these two treaties in place, it would not be possible to replenish the nuclear stockpiles as they were drawn down or to replace weapons that were phased out with thoroughly tested new designs.8 In the decade after 1995 the momentum generated by nuclear arms control in particular has been lost as nuclear arms control treaties have in general become less frequent, less ambitious and less binding. The total number of nuclear weapons has been significantly reduced since the end of the Cold War and the reduc4

Joint Statement on Parameters on Future Reduction in Nuclear Forces, available at http://www.fas.org/nuke/control/start3/docs/bmd970321e.htm. 5 GA Res. 50/245 (A/RES/50/245), 10 September 1996. 6 Draft Comprehensive Nuclear-Test-Ban Treaty, UN Doc. A/59/1027, Annex, UN Doc. CD/1427, 22 August 1996. 7 GAOR, 50th Session, Supp. No. 27 (A/50/27), 131, para. 27. 8 The CTBT does not define a nuclear explosion, but the negotiating record makes clear that the treaty’s prohibition applies to all explosions, for peaceful purposes or otherwise, with nuclear yields greater than zero. However, the CTBT does not prohibit weaponsrelated experiments producing no nuclear yield. The nuclear weapon states interpret this to mean that the treaty allows subcritical experiments involving fissile materials as well as hydrodynamic tests of weapon assemblies without fissile materials. Under this interpretation the testing of non-nuclear components of weapon designs is also not prohibited. Many nonnuclear weapon states have questioned whether this would allow the nuclear weapon laboratories of the nuclear weapon states to carry out tests and other types of research that could enable the development of new types of nuclear weapons and to maintain existing weapons in perpetuum.

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tions in numbers are set to continue. As a result of a decision to accelerate the process of taking warheads out of the active stockpile announced by President George Bush in December 2007, US nuclear forces in service have been reduced by roughly three-quarters since the end of the Cold War. However, the practice of developing and using measures to offer assurances and verification around nuclear arms reductions proved unsustainable. The START II never entered into force and negotiations on START III never commenced. Many nuclear weapons with lower than intercontinental range have therefore never been brought into arms control apart from a series of Russian and American unilateral declarations on them in 1991–1992, without any real clarity on what has been done by way of follow-up. The latest US-Russian agreement on strategic nuclear arms, the 2002 Strategic Offensive Reductions Treaty (SORT, often referred to as the Moscow Treaty)9 that provided the context for the decision by President Bush noted above, contains no counting rules or definitions that identify which warheads count under the limits, and each party is free to determine the structure and composition of its forces. The treaty lacks detailed verification and monitoring provisions. China, France and Britain for their part have entered into few arms control commitments regarding their own weapon stockpiles. While the United Kingdom has recently reiterated the view that the only full guarantee against the use of nuclear weapons would be a world free of all nuclear weapons, it has also taken steps to ensure the viability of its own nuclear arsenal for many decades to come. The Comprehensive Test Ban Treaty10 has not entered into force because a number of key states refuse to ratify it. According to Article 14 of the Treaty, entry into force cannot take place until 44 States that are listed in an Annex to the Treaty have deposited their instruments of ratification with the Secretary-General of the United Nations. A significant number of countries listed in the Annex have not ratified the treaty (including the USA) and several have not yet signed it (including India and Pakistan). The process of negotiating a treaty banning the use of fissile materials for nuclear explosive purposes has never started, though informal discussions have been held over a draft treaty text11 published by the United States. As of 2007, although there is no authoritative global inventory of nuclear weapons, SIPRI believes that there are still about 11,500 operational weapons around the world, and thousands of these are on such high alert that they could be launched within minutes. If all spare warheads and weapons kept in some kind of 9

Available at http://whitehouse.gov/news/releases/2002/05/20020524-3.html. See note 6. 11 Draft Treaty on the Cessation of Production of Fissile Material for Use in Nuclear Weapons or Other Nuclear Explosive Devices, UN Doc. CD/INF.49/Add.1 (CD/1777). 10

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storage are taken into account, the global total is estimated to be to some 27,000 warheads. The USA and Russia each have over 5,000 operational weapons deployed and thousands more held in reserve, while the nuclear arsenals of China, the UK and France are far smaller, numbering in the hundreds. It is hard to make reliable estimates of the arsenals of India, Pakistan and Israel.12 The question of whether future nuclear arms reductions will take place under bilateral agreements between the United States and Russia has moved closer to the top of the agenda of senior decision makers because START I, the treaty signed in 1991 that required Moscow and Washington to cut their deployed strategic nuclear forces,13 will expire in December 2009. Modernization decisions taken recently by nuclear weapon states ensure that nuclear weapons will retain an important role in the arsenals of these states for the next fifty years. President Bush has described his decision to reduce warhead numbers as part of a strategy to transform the US nuclear weapons stockpile and its supporting infrastructure to better meet the security needs of the 21st Century. Reducing reliance on nuclear weapons is a stated objective, but the outlook is not entirely clear concerning whether eliminating nuclear weapons is still held out as the ultimate goal. The Moscow Treaty codified the thinking of the Bush Administration about its strategic nuclear forces based on a world view and a national security strategy in which Russia played a less central role. The Administration has argued that, because the United States and Russia are no longer enemies, it is not appropriate for the United States to think of its nuclear forces as a deterrent to a putative Russian threat. The force structure changes that would help reduce warhead numbers to the levels required under the Moscow Treaty would eliminate systems developed very much with confrontation with Russia in mind. Nuclear weapons are expected instead to play a broader role beyond the traditional tasks of deterring nuclear attack on the United States and reassuring allies and friends of the continued commitment to their security. The US has proposed developing and maintaining capabilities to counter a wider range of adversaries under a wider range of circumstances. This approach has also been the basis for US thinking about the appropriate framework for strategic arms control in the future. The Bush Administration believes that pursuing an ongoing dialogue on security, together with transparency and confidence building measures, should be the normal way of managing relations with Russia, rather than the types of arms control agreements that were pursued in the past. The Russian view is that this 12 Cf. S. N. Kile/V. Fedchenko/H. M. Kristensen, World nuclear forces, 2007, SIPRI Yearbook 2007, 514 et seq. 13 See note 2.

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kind of arrangement will not provide a stable basis for future planning, and that a legal agreement on future nuclear forces would be preferable. Recently we have been reminded that what has been achieved in disarmament is not necessarily permanent. The USA set the precedent of withdrawal from nuclear arms control treaties by leaving the 1972 Treaty on the Limitation of AntiBallistic Missiles (ABM Treaty) in order to build defenses against all classes and all ranges of ballistic missiles.14 In 2007 the President of Russia, Vladimir Putin, has made a number of public statements on the 1987 Intermediate-Range Nuclear Forces (INF) Treaty and the 1990 Treaty on Conventional Armed Forces in Europe (CFE Treaty) that could signal the beginning of the end for the arms control system put in place in Europe at the end of the Cold War.15 There seems little doubt that the two countries with the largest nuclear weapon arsenals can accomplish their security policy objectives with substantially smaller numbers of warheads than they maintained in the past. The United States has recently confirmed that it will continue to draw down its nuclear weapon stockpile.16 However, while the larger nuclear powers are reducing the number of weapons as they become too old and inappropriate, at the same time they have plans to update and reconfigure their capabilities so that they are not actually being eroded. The roles envisaged for nuclear weapons may also be in a process of adaptation to respond to the wider range security threats that could damage nuclear powers. In the Cold War, both the West and the East in Europe worried about one big threat from the bloc on the other side and potential “big threats” still play a role in thinking about nuclear weapons. US analysts in particular expressed surprise at the pace and scope of modernization of Chinese strategic force modernization,17 which is already said to have altered regional military balances in Northeast Asia. Furthermore, the long-term trend in China’s strategic nuclear forces modernization, land- and sea-based access denial capabilities, and emerging precision-strike weapons has been identified by the US government as a credible potential threat.18 14

See S. N. Kile, Ballistic missile defence and nuclear arms control, SIPRI Yearbook 2002, 489 (506 et seq.), with further references. 15 See, e.g. Putin’s Prepared Remarks at 43rd Munich Conference on Security Policy, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/02/12/AR 2007021200555.html. 16 See S. N. Kile/V. Fedchenko/H. M. Kristensen, World nuclear forces, 2008, SIPRI Yearbook 2008, 366 (367 et seq.), with further references. 17 See U.S. Department of Defense, Office of the Secretary of Defense, Annual Report to Congress, Military Power of the People’s Republic of China 2006, I, available at http:// www.dod.mil/pubs/china.html. 18 Ibid., 24 et seq.

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However, concerns also arise about a wider range of more diffuse issues including civil wars at or close to the borders of nuclear weapon states; the international impact of other people’s conflicts; the actions of a few so-called rogue states who have shown themselves capable of reckless behavior against the international community in general; and about terrorists who might be sheltered by such states or might act on their own. While the USA, Britain and France have never excluded the first use of nuclear weapons, statements in the 1990s stressed that the circumstances in which any use of nuclear weapons might have to be contemplated are extremely remote.19 The 1999 NATO Strategic Concept underlined that, because the relative capacity to mount a successful conventional defense significantly improved with the end of the Soviet Union, a dramatic reduction of the types and numbers of NATO’s sub-strategic forces (including the elimination of all nuclear artillery and ground-launched shortrange nuclear missiles) was possible. NATO also stated that sub-strategic nuclear weapons would not be deployed in normal circumstances on surface vessels and attack submarines.20 Subsequent statements by senior political leaders in Russia, France, India, the USA and the UK appear to hint at a new core mission for nuclear weapons, namely, to deter or respond to attacks by a non-nuclear weapon state armed with chemical or biological weapons. These statements are a reminder that the process of chemical weapons disarmament is not complete. As of 2008, over 40 per cent of declared chemical weapon stockpiles have been destroyed under the supervision of the Organisation for Prohibition of Chemical Weapons (OPCW)21 – the agency created to oversee the implementation of the Chemical Weapons Convention (CWC). While this represents good progress, there is a long way to go. At the same time a number of countries suspected to have developed chemical weapons remain outside the CWC. Three countries in the Middle East (Egypt, Israel and Syria) have indicated to the OPCW that although they support the goal of chemical weapon disarmament, security policy concerns prevent participation in CWC at present. A fourth country, North Korea, has never shown any interest in discussing participation in the CWC. The current version of Russia’s military doctrine makes it clear that Russia maintains the right to use nuclear weapons in response to the use against it and/or its allies of nuclear or other types of weapons of mass destruction, as well as in 19 NATO, The Alliance’s New Strategic Concept, para. 56, available at http://www. nato.int/docu/comm/49-95/c911107a.htm. 20 Ibid. 21 See for the current status the homepage of the OPCW, available at http://www. opcw.org.

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response to large-scale aggression using conventional weapons where Russian security is threatened.22 The impact on the future size and configuration of nuclear forces worldwide is difficult to assess. Even if the role assigned to the world’s nuclear weapons was restricted to deterring each other, the elements of predictability are fewer and the institutional framework for dialogue has not been adapted to the new strategic configuration. The future strategic map of the world would have to accommodate more complicated relationships than the dyads of the past such as the USA and Russia, or India and Pakistan. The continued development of defenses against the full spectrum of missiles might, over time, erode the basis for strategic stability. If one side in a future nuclear crisis believes itself to be protected against the effect of a nuclear attack while an adversary remains vulnerable, then deterrence might not only be less effective, it might become positively dangerous.

B. Pushing Ahead on the Global Nuclear Disarmament Agenda In the short and medium term there are two issues that need to be the kept at the center of any nuclear disarmament perspective. First, given the special responsibility of the two countries that together account for the lions share of global nuclear weapon arsenals, it will be important to preserve transparency and irreversibility in bilateral US-Russian strategic arms control. As US and Russian officials have begun preliminary discussions on how to perpetuate the START regime, the fate of the treaty’s comprehensive approach to transparency and confidence-building is at issue. Earlier strategic arms limitation agreements were to be verified without requiring access to the territory of the other side. Compliance was to be assured by using national technical means of verification in cold war conditions where on-site inspection and cooperative monitoring were excluded and the best that could be achieved was an undertaking not to interfere with national technical means of verification through spoofing or deliberate concealment measures. By contrast, the START agreement is built on a cooperative set of intrusive inspection and monitoring provisions. Moreover, the Joint Compliance and Inspection Commission is authorized to release certain information gained through the verification process to the public.23 The verification system for START, therefore, 22 Gennady Evstafiev, Disarmament Returns, Security Index 2007, No. 2, available at http://pircenter.org/data/ib/sieng2/evstafiev_eng.pdf. 23 Protocol on the Joint Compliance and Inspection Commission Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the

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has the additional merit that it goes beyond reassuring the executive agencies in the countries that are parties to the treaty that provisions are being complied with in good faith. This reassurance is provided more generally to domestic actors in treaty parties, including national parliaments. More broadly, this information is also released to the international community, recognizing that the devastating destructive potential of nuclear weapons creates a general interest in nuclear disarmament. The verification regime helps to serve the purpose of making nuclear force reductions transparent and irreversible. However, in the mid-1990s a number of technical approaches were discussed and designed which would have allowed the United States and Russia to go further in future arms control treaties by directly verifying the reduction in the fissile materials – plutonium and highly enriched uranium – that represent the critical elements in nuclear weapons. However, the application of these techniques did not survive the wider loss of momentum in nuclear arms control and the cooling of bilateral political relations between Russia and the United States. Restoring this level of cooperation in bilateral nuclear arms control should become an objective for the main parties to negotiations. The second main priority should be to think about how to accommodate the changes in the strategic environment noted above into an arms control process. A number of the objectives have been advanced as potential rationales for future arms control negotiations cannot be accomplished any longer through bilateral talks. For example, to maintain strategic stability, prevent the re-emergence of a new nuclear arms race and build trust between states in respect of their intentions for their nuclear weapons it would be necessary at a minimum to expand the discussions to include the present and future Chinese nuclear weapon stockpile. Against this background, SIPRI believes that the time is now ripe to consider ways of promoting increased transparency in the nuclear forces and doctrines of the P-5 states. One practical step in this direction would be to establish a Nuclear Armament Consultative Group (NACG) initially consisting of knowledgable and influential participants from the five legally-recognized nuclear weapon states acting in their personal capacity. The NACG might in future expand to include representatives of other states with nuclear weapons. SIPRI has put forward this idea in an article by Shannon Kile.24

Reduction and Limitation of Strategic Offensive Arms, Section V, available at http://www. state.gov/documents/organization/27387.pdf. 24 S. N. Kile, Promoting Transparency in Nuclear Forces and Doctrines, in: Norwegian Ministry of Foreign Affairs, Is Anything Doable in the Field of Nuclear Disarmament?, 2006.

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The NACG could provide a confidential forum in which each participating state could discuss nuclear doctrines and force modernization plans and address the concerns of other states potentially arising therefrom. The long-term objectives would be to a) forestall the build up of nuclear forces based on worst-case assessments; b) ameliorate concerns about force asymmetries; c) reduce the possibility for a break out or “creep out” from existing nuclear arms control treaties and initiatives; and d) reinforce the normative basis of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its disarmament provisions. Increased transparency will be a fundamentally important element for beginning any negotiations to establish monitoring systems, reduce the size and salience of nuclear arsenals, and eventually eliminate them. In addition, the work of the group could be organized in a way which would shed light on other important substantive issues related to future disarmament. In this way the NACG could also help to support and reinforce public diplomacy without losing its collegiate and confidential character. Examples of issues that could benefit from discussion and clarification include Chinese perspectives on nuclear force modernization; the US and Russian approaches to arms control; and the future of tactical nuclear weapons in Europe. This work would be also accompanied by regularized reporting and analysis of the NACG deliberations and would issue recommendations for how nuclear weapons states can feasibly broaden their transparency and confidence-building.

C. Preventing the Spread of Nuclear, Biological and Chemical Weapons To this point the focus has been placed on the issues pertaining to the reduction of existing stockpiles. It has been noted that overall numbers of nuclear and chemical weapons have been reduced very significantly since the end of the Cold War. Furthermore, these reductions will continue in the foreseeable future. At the same time, the willingness of countries to codify these reductions and embed them into international law has been uneven. It is right that attention should be directed to the small number of countries that have built very large weapon arsenals. However, efforts to prevent the emergence of new weapon states have also played a prominent role in arms control and disarmament during the past few years. In the 1990s a number of weapon programs that were already known about came to be seen in a new light. During the 1980s the government of Iraq used chemical weapons both against Iranian forces during the 1980–1988 Iraq-Iran war and to attack its own citizens. However, the international weapon inspectors that

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were able to work inside Iraq during the 1990s uncovered a web of nuclear, biological and chemical weapon programs far in excess of what had previously been known. It was widely recognized that India and Pakistan were implementing national nuclear weapon development programs since the 1970s. In 1998 India and Pakistan each conducted tests of nuclear explosive devices and declared their intention to embed nuclear weapons into their military security strategies.25 Also in 1998, North Korea tested a long-range ballistic missile by firing it in a trajectory that passed over Japan before landing in the Pacific Ocean. The test, which was conducted without warning, led Japan to increase its investment in surveillance and missile defense systems significantly after 1999. In 2002 investigations by the International Atomic Energy Agency confirmed reports of undeclared Iranian nuclear activities that were highly sensitive from a proliferation perspective – uranium enrichment and the separation of plutonium – as well as the presence of undeclared imported nuclear material in Iran.26 The IAEA investigation discovered that Iran had been actively engaged in acquiring equipment from an international network of suppliers coordinated by Pakistani scientist A. Q. Khan. After December 2003 another country, Libya, confirmed to the IAEA that it had used the same international trafficking network to acquire nuclear proliferation-sensitive equipment.27 Libya also confirmed to the OPCW that it had produced 23 tonnes of mustard gas during the 1980s.28 These “shocks” prompted a critical examination of international non-proliferation instruments. Given the serious cases sketched above, some countries – with the United States and the United Kingdom particularly prominent – have recently taken the view that “non-proliferation” is an inadequate term to describe current tendencies around the world. These countries increasingly favor the term counterproliferation when talking about deterring, checking and, where possible, rolling back identified weapon programs and blocking access to related technology. Others still use the term non-proliferation, pointing to the fact that only a very 25 See press releases by Shiv S. Mukherjee, Minister (Press, Information & Culture), Embassy of India “Planned Series of Nuclear Tests Completed,” 11 and 13 May 1998, and “Pakistan’s Second Round Of Nuclear Tests,” 30 May 1998, available at http://www. indianembassy.org/pic/PR_1998/List_PR_1998.html. 26 See IAEA news release “IAEA chief addresses Iraq, North Korea and Iran issues,” 13 December 2002, available at http://www.iaea.org/NewsCenter/News/2002/13-540911. shtml. 27 See IAEA press release 2003/14 “IAEA Director General to Visit Libya,” 22 December 2003, available at http://www.iaea.org/NewsCenter/PressReleases/2003/prn 200314.html. 28 See OPCW news release “Initial Inspection in Libya Completed,” 22 March 2004, available at http://www.opcw.org/news/news/article/initial-inspection-in-libya-completed.

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small number of countries are either known or strongly suspected to have nuclear or chemical weapon programs (there are no identified biological weapon programs in the world). In any event, the outcome has been an international effort to develop what is sometimes referred to as “defense in depth” in which existing instruments such as multilateral treaties are supplemented by additional laws, programs and processes. As a result, a multi-faceted approach combining political, legal and operational instruments has gradually taken shape to the point where it may in future be possible to talk of a non-proliferation system that is worth the name. The high-level political effort to raise the profile of the issue of proliferation has been pursued through international organizations at a global and regional level, and there can have been few recent summits that have not included a nonproliferation aspect. The political effort has also been taken up in ad hoc and informal mechanisms, with the G8 group of industrialized countries perhaps particularly prominent. The need to strengthen or reinvigorate existing treaties, including the NPT, the Biological Weapons Convention and the CWC, have underlined the difficulty of using multilateral legal instruments in this area. Widespread agreement on the need to make laws more effective has not translated into either treaty amendments or new protocols. The practical impossibility of modifying multilateral legal instruments does not undermine the strong norm against proliferation that the treaties establish. However, it does leave the documents vulnerable to criticisms that they are unable to accommodate important technological and political changes that can erode their relevance and undermine the established norms. The main focus on the development of non-proliferation law has progressively migrated away from the negotiation of multilateral treaties towards other processes. The United Nations Security Council has begun to create non-proliferation law. Based on a proposal by President George Bush in September 2003,29 Resolution 1540 was adopted by the Security Council in April 2004.30 This was a short period of discussion for an act that is binding on all UN Member States and that requires them to take concrete steps to prevent the transfer of WMD-related materials by putting in place national laws, policies and procedures.

29 See address to the General Assembly plenary by George W. Bush, 23 September 2003, GAOR, 58th session, 7th plenary meeting (A/58/PV.7), 11. 30 SC Res.1540 (2004), 28 April 2004, SCOR, Resolutions and Decisions (S/INF/59), 214.

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Another approach to law-making has been to use regimes to define the approach that partners will adopt in regard to a particular non-proliferation issue. Regimes are informal networks that have been defined as a set of explicit or implicit principles, norms, rules, and decision-making procedures “around which actor expectations converge in a given issue-area.”31 A condition of regime participation is that the partners will then ensure that their national laws, policies and procedures conform to that agreed position. The cooperative efforts to strengthen national export controls are an example of the impact that regimes can have on law-making. In the frameworks of the regimes, participating states agree on lists of items that may not be exported without prior permission granted by a responsible national authority, usually in the form of a licence. The decisions in the regimes have no legal impact on exporters. However, the lists provide the technical basis for national export control laws that impose criminal and administrative penalties on exporters that ignore them. A third tendency has been to make use of laws developed for other purposes as part of the international non-proliferation effort. For example, in 2005 a protocol to the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention)32 defined new offences related to the use of nuclear, biological or chemical materials in acts of mass impact terrorism. The modified SUA Convention also modernized the set of procedures designed to facilitate the boarding of a ship suspected to be involved in an offence. Another tendency has been to define new standards for application by actors that were not traditionally subject to arms control and disarmament laws. The private sector of industry has ownership and control over materials, techniques, production equipment and transportation networks that proliferators would like to exploit. This private sector has also been identified as a part of the critical infrastructure needed for a functioning modern society and that could be vulnerable to acts of mass impact terrorism. As a result, concern about proliferation and the need to counter terrorism have combined to promote discussion with the private sector about what steps should be taken to reduce risks. For example, industry has been encouraged to make its own risk assessments and reduce identified vulnerabilities by developing processes to

31

This definition was developed by Stephen Krasner in 1983: S. D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in: S. D. Krasner (ed.), International Regimes, 1983. 32 Available at http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_ id=686.

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evaluate customers, to ensure adequate physical protection for items and facilities and to ensure that items in sales and distribution networks are only accessible to people with the appropriate authorization. The interaction with industry has mainly consisted of using established networks, such as trade associations, to promote voluntary actions by companies. However, where industry is unwilling to engage or to carry the costs of implementing necessary measures on a voluntary basis, it may be necessary to look at the need for legislation.

D. The Role of Law in Eliminating Nuclear, Biological and Chemical Weapons This brief survey has suggested that at one level there is a very stable situation in regard to the legal framework for arms control and disarmament. Most countries have adhered to a significant body of law and few give any indication that they would want to withdraw from their commitments. At the same time, the existing body of law was not developed to cope with new factors emerging in the field of international security, in particular with intertwining state and non-state threats. As a result, it can be concluded that although the international legal system is currently playing an important role in the field of arms control and non-proliferation, there is a clear need to strengthen existing agreements and to introduce further improvements. However, because political differences among key parties have made it impossible to create a clear agenda for action, the multilateral arms control process has been stalemated. Where progress has been possible it has sometimes been in the field of “soft law” avoiding treaties proper. In a number of cases agreements of this type do not seem to be any less binding on the parties because emphasis has been placed on the development of national laws codifying the commitments agreed at a political level. This could be said to create a more binding obligation than the case with a great many states who join international treaties but neglect to put in place national implementing provisions. It is more difficult to evaluate the impact of laws that were not created with the consent of parties that are bound by them – legislative acts by the UN Security Council. There is a risk that it will be difficult to persuade states to adopt national enforcement of a measure that they had little say in adopting and that the vagueness with which the specific commitments in the legislation are described will defeat the efforts of states that would want to comply. If states turn to the UN for

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clarification of their obligations, the Security Council does not have either a significant expert resource of its own or a well developed mechanism to access the necessary expertise from other places.

Disarmament Obligations of and Assurances of Non-Use by Nuclear Weapon States By Heike Krieger1

A. Introduction: From Deterrence to Preemption? The heyday of disarmament was the Cold War. Political calls for the partial or complete abolition of nuclear weapons stood in sharp contrast to the practice of deterrence. Since September 11th, however, political strategies based on disarmament or deterrence have been forced to give way to counterproliferation and preemption-strategies, which seem to be more suitable for addressing diffuse threats from rogue states and terrorists. Still, numerous measures of counterproliferation and preemption lack legitimacy and sometimes even legality.2 Thus, the 2005 Review Conference of the Non-Proliferation Treaty3 revealed a broad crisis of legitimacy.4 Parties to the Conference made clear that they would not accept proposals to strengthen the non-proliferation side of the Non-Proliferation Treaty if the nuclear weapon states were not prepared to fulfil their disarmament obliga-

1

All internet sources have last been accessed on 30 April 2009. Heike Krieger, A Nuclear Test for Multilateralism – Challenges to the Nuclear NonProliferation Treaty as a Means of Arms Control, German Yearbook of International Law 49 (2006), 17–50 (33 et seq.); on the Proliferation Security Initiative see Michael Byers, Policing the High Seas, American Journal of International Law (AJIL) 98 (2004), 526–545; Christian Schaller, Die Unterbindung des Seetransports von Massenvernichtungswaffen, SWP-Studie 2004, May 2004; on the concept of preemptive self-defense see M. Bothe, Terrorism and the Legality of Pre-Emptive Force, European Journal of International Law 14 (2003), 227–240; Jutta Brunée/Stephen J. Toope, The Use of Force: International Law after Iraq, International and Comparative Law Quarterly 53 (2004), 785–806; Andrew GarwoodGowers, Pre-emptive Self-defence, Australian Yearbook of International Law 23 (2004), 51–72; R. Zedalis, Circumstances Justifying Pre-emptive Self-defence, Nordic Journal of International Law 74 (2005), 209–230. 3 Treaty on the Non-Proliferation of Nuclear Weapons, 5 March 1970, UNTS, vol. 729, 161. 4 Chamundeeswari Kuppuswamy, Is the Nuclear Non-Proliferation Treaty Shaking its Foundations?, Journal of Conflict and Security Law 11 (2006), 141–155 (148). 2

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tions in turn.5 Thus, a revival of disarmament on the political plane could contribute to effective non-proliferation efforts. This is, at least, what Henry Kissinger and George Shultz suggested in a Wall Street Journal article in 2007. They advance the idea that “US leadership will be required to take the world to … a solid consensus for reversing reliance on nuclear weapons as a vital contribution to … ultimately ending them as a threat to the world”6 – utopian thoughts for politicians who were once considered to be true realists?

B. Article VI of the Non-Proliferation Treaty Kissinger’s and Shultz’s suggestion is not wishful political thinking but an approach grounded in a solid legal obligation. Article VI of the Non-Proliferation Treaty requires the parties to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament with a view to a treaty on general and complete disarmament under strict and effective international control. “The legal import of that obligation goes beyond that of a mere obligation of conduct.” The ICJ found in its Advisory Opinion on the Legality of Nuclear Weapons that the obligation involved “is an obligation to achieve a precise result.” In order to achieve this result, state parties to the Non-Proliferation Treaty have to adopt “a particular course of conduct, namely, the pursuit of negotiations in good faith.”7 The ICJ also stressed that

5 E.g. Statement by the Minister of Foreign Affairs of Sweden at the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, 3 May 2005, available at http://www.un.org/events/npt2005/statements/npt03sweden.pdf.; statement by the delegation of Malaysia, on behalf of the Group of Non-Aligned States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, at the plenary of the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, concerning the adoption of the agenda, New York, 11 May 2005, Non-Proliferation Treaty/CONF.2005/32, available at http://www.un.org/events/npt2005/reports.html; see also Shannon N. Kile, Nuclear Arms Control and Non-Proliferation, SIPRI Yearbook 2006, 607–638 (617); Thilo Marauhn, Verhaltenssteuerung durch Völkerrecht? – Perspektiven der rechtlichen Ausgestaltung von Rüstungskontrolle, Sicherheit und Frieden (S+F) 3–4/ 2003, 141–149 (144 et seq.). 6 George P. Shultz/William J. Perry/Henry A. Kissinger/Sam Nunn, A World Free of Nuclear Weapons, The Wall Street Journal, 4 January 2007, available at http://online.wsj. com/article/SB116787515251566636.html. 7 Legality of the Use or Threat of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 (263 et seq., para. 99); see also Krieger (note 2), 24.

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complete nuclear disarmament would be an important means to guarantee the stability of the international order in the long run.8 Although Article VI of the Non-Proliferation Treaty addresses all parties to the Treaty, the nature of the measures laid down in the Article makes it clear that the nuclear weapons states are under a specific obligation here. Article VI of the NonProliferation Treaty is the “only treaty provision in which nuclear-weapon States have undertaken a legal obligation to negotiate nuclear disarmament agreements.”9 The Article is considered to be a compensation for the imbalance of obligations between the state parties, since the Non-Proliferation Treaty is mainly addressed to the non-nuclear weapon states requiring them to renounce nuclear weapons. The dispute about legitimacy at the 2005 Review Conference made clear that a definite commitment to disarmament is a quid pro quo for the renunciation of nuclear weapons.10 Even though some observers hold that disarmament promises will not keep states from acquiring nuclear weapons if they are willing to, statements ranging from the EU member states to states like Malaysia demonstrate that the unbalanced approach to the Non-Proliferation Treaty severely weakens the system.11 While the Non-Proliferation Treaty is not based on strict reciprocity, it still requires the fulfilment of obligations by all state parties.

C. Disarmament Efforts The criticism brought forward by the non-nuclear weapon states is justified. Although some success has been reached in the cessation of the nuclear arms race, the overall assessment in relation to disarmament is negative. In the 1970s the SALT I Agreement12 and the ABM Treaty13 marked significant steps forward to 8

Legality of the Use or Threat of Nuclear Weapons (note 7), 263, para. 98. Miguel Marin Bosch, The Non-Proliferation Treaty and its Future, in: Laurence Boisson de Chazournes/Peter Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons, 1999, 375, 388. 10 Jean du Preez, The 2005 NPT Review Conference: Can It Meet the Nuclear Challenge? Arms Control Today, April 2005, available at http://www.armscontrol.org/act/ 2005_04/duPreez.asp. 11 See supra note 5; Krieger (note 2), 22, 24. 12 Interim Agreement between the United States of America and the Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, 26 May 1972, International Legal Materials (ILM) 11 (1972), 791; UNTS, vol. 944, 3. 13 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, 26 May 1972, ILM 11 (1972), 784; 23 U.S.T. 3435; UNTS, vol. 944, 13. 9

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cease the nuclear arms race. The Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles of 198714 was probably the only effective disarmament measure between the United States and the USSR so far.15 The end of the Cold War made some success possible in relation to the START I and START II Treaty16 and the SORT Treaty.17 However, most of these successes can be contrasted with failures and set-backs in the negotiations between the United States and Russia. Let me remind you of some major events: in December 2001 the United States withdrew from the ABM Treaty.18 The United States Congress did not ratify the SALT II Agreement19 or the Comprehensive Test Ban Treaty.20 The START II Treaty did not enter into force because the parties did not exchange the instruments of ratification.21 In reaction to the United States withdrawal from the ABM Treaty, Russia declared that it would no longer consider itself bound by the START II Treaty.22 So, while prospects for efforts to stop the nuclear arms race seem bleak, the prospect of nuclear disarmament seems even less likely. As Mohamed Shaker blankly stated, “...[n]o measure of real nuclear disarmament has been achieved. It is true that some weapons become obsolete and are therefore shelved, but they are

14 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, 8 December 1987, ILM 27 (1988), 84; Senate Treaty Document No. 100-11 (1987). 15 Mohamed I. Shaker, The Evolving International Regime of Nuclear Non-Proliferation, Recueil des cours 321 (2006), 9–202 (149). 16 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms, 31 July 1991, Senate Treaty Document No. 102-20 (1991), reprinted in United Nations Disarmament Yearbook 16 (1991), 450 et seq.; Treaty Between the United States of America and the Russian Federation on the Further Reduction and Limitation of Strategic Offensive Arms, 3 January 1993, Senate Treaty Document 103-1 (1993). 17 Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, 24 May 2002, Senate Treaty Doc. No. 107-8 (2002). 18 Statement by the White House Press Secretary, Announcement of Withdrawal from the ABM Treaty, Office of the Press Secretary, Washington, DC, 13 December 2001, available at http://www.state.gov/t/ac/rls/fs/2001/6848.htm. 19 See Shaker (note 15), 149. 20 Congressional Record – 106th Congress, 13 October 1999, S 12548. 21 Shaker (note 15), 150; for US Ratification see Congressional Record, 26 January 1996, S 461. The ratification by the Russian Duma took place on 14 April 2000. 22 See Wade Boese, Russia Declares Itself No Longer Bound by START II, Arms Control Today, July/August 2002, available at http://www.armscontrol.org/act/2002_07-08/ start2jul_aug02.asp.

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replaced by new and more powerful weapons.”23 Suggestions raised in the General Assembly, its First Committee and the Disarmament Commission, or at the Conference on Disarmament in Geneva have not led to any significant success,24 nor has there ever been a true attempt to negotiate a Treaty on General and Complete Disarmament under strict and effective international control as suggested by Article VI of the Non-Proliferation Treaty.25

D. Consequences of the Failure to Disarm What are the consequences of the nuclear weapons states’ failure to stop the nuclear arms race and to turn to meaningful measures of disarmament? Nonnuclear weapon states have different options to react. One possibility is to try and look for other means to diminish the dangers stemming from a nuclear weapons arms race. Such a way to strengthen the legitimacy of the Non-Proliferation Regime would be an effort by the US Administration to reinforce negative security assurances which have gradually been weakened since 1995 (I.). Another option could lie in the termination or suspension of the Non-Proliferation Treaty by the non-nuclear weapon states for a breach of contract (II.).

I. Negative Security Assurances Security assurances are seen as an essential part of the non-proliferation system. Two forms of security assurances can be distinguished. Positive security assurances were part of the negotiations leading to the conclusion of the Non-Proliferation Treaty. In case of a positive security assurance, nuclear weapon states promise to provide immediate assistance to non-nuclear weapon state parties which are victims of a threat or aggression with nuclear weapons.26 In contrast, negative security assurances are given by the nuclear weapon states with the intention not to use nuclear weapons against Non-Proliferation Treaty state parties, which have 23

Shaker (note 15), 153. See in general Multilateral Disarmament and Non-Proliferation Regimes including the Role of the United Nations: An Evaluation; Contribution of the Advisory Board on Disarmament Matters to the High-Level Panel on Threats, Challenges and Change, 2004, http://disarmament.un.org.ddapublications/opart02.pdf. 25 Shaker (note 15), 155. 26 UN Doc. S/Res/255 (1968) of 19 June 1968, Questions relating to Measures to Safeguard Non-Nuclear-Weapon States Parties to the Treaty of Non-Proliferation of Nuclear Weapons, para. 2. 24

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renounced obtaining such weapons.27 They shift the focus from disarmament to the ius ad bellum.

1. Legally Binding Character? There is some uncertainty whether negative security assurances are legally binding upon the five nuclear weapon states in such a way that they would not be free to step back from their obligations. Here, it is helpful to distinguish between different types of negative security assurances. Some of these assurances are part of multilateral treaties, such as Protocol II of the Treaty of Roratonga,28 which establishes the South Pacific Nuclear Free Zone.29 While France, the UK and China ratified the Protocol and are thus bound by their assurances, the United States only signed it.30 All five nuclear weapon states ratified the comparable Protocol of the Treaty of Tlatelolco,31 which sets up a nuclear weapon free zone in Latin America and the Caribbeans. The United States, however, later qualified its obligations.32 Under the Non-Proliferation Treaty, a negative security assurance is given as a separate unilateral statement. In the Nuclear Test case, the ICJ explained under which circumstances such a unilateral act will have binding force: “The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced.”33

27

Leonard S. Spector/Aubrie Ohlde, Negative Security Assurances: Revisiting the Nuclear-Weapon-Free Zone Option, Arms Control Today, April 2005, available at http:// www.armscontrol.org/act/2005_04/Spector_Ohlde.asp. 28 South Pacific Nuclear Free Zone Treaty, 6 August 1985, UNTS, vol. 1445, 177; ILM 24 (1985), 1442, Protocol II, 1461. 29 Norbert Pelzer, Nuclear-Free Zones, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. III, 1997, 705 (708). 30 On the status of Protocol II see http://www.opanal.org/NWFZ/Rarotonga/rarotonga. htm. 31 Treaty for the Prohibition of Nuclear Weapons in Latin America, 14 February 1967, UNTS, vol. 634, 326. 32 Georg Bunn/Jean du Preez, More than Words: The Value of the US Non-NuclearUse Promises, Arms Control Today, July/August 2007, available at http://www.arms control.org/act/2007_07-08/NonUse.asp. 33 Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457 (474, para. 53).

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United States assurances are made quid pro quo for the renunciation of nuclear weapons by other Non-Proliferation Treaty member states. Especially, at the 1995 Review Conference, the indefinite extension of the Non-Proliferation Treaty was directly linked to such promises.34 All P5 made their promises to the UN Security Council,35 and the UN Security Council took note of these promises with appreciation in Resolution 984 (1995).36 However, probably except for China, all permanent members considered their assurances not to be binding.37 Correspondingly, the content of the negative security assurances of France, Russia, the UK and the United States is almost the same.38 The wording indicates that all these states do not intend to give binding promises. In contrast, the intention to be legally bound can be deduced from the wording of the Chinese Declaration. It does not contain an exception for invasion or other attacks on the territory.39 China undertook “not to be the first to use nuclear weapons at any time or under any circumstances.” Moreover, China “calls for the early conclusion of an international convention on no-first-use of nuclear weapons as well as an international legal instrument assur34

Bunn/du Preez (note 32). Letter dated 6 April 1995 from the Permanent Representative of China to the United Nations addressed to the Secretary-General, UN Doc. A/50/155; Letter dated 6 April 1995 from the Permanent Representative of France to the United Nations addressed to the Secretary-General UN Doc. A/50/154; Letter dated 6 April 1995 from the Permanent Representative of the Russian Federation to the United Nations addressed to the SecretaryGeneral, UN Doc. A/50/151; Letter dated 6 April 1995 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General, UN Doc. A/50/152, and Letter dated 6 April 1995 from the Chargé d’affaires a.i. of the Permanent Mission of the United States of America to the United Nations addressed to the Secretary-General, UN Doc. A/50/153. 36 UN SC Res. 984 (1995), 11 April 1995. 37 See on the US position that the assurances are not binding international agreements because they were not ratified domestically Spector/Ohlde (note 27). 38 Letter dated 6 April 1995 from the Permanent Representative of France to the United Nations addressed to the Secretary-General, UN Doc. A/50/154. 39 See, however, United States, Statement by Christopher regarding a Declaration by the President of the United States on Security Assurances for non-nuclear weapon state parties to the Non-Proliferation Treaty, 5 April 1995: “The United States reaffirms that it will not use nuclear weapons against non-nuclear-weapon [NPT parties] except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a state towards which it has a security commitment, carried out or sustained by such a non-nuclear-weapon state in association or alliance with a nuclearweapon-state,” available at http://www.fas.org/nuke/control/npt/docs/940405-nsa.htm; see also 1995 NPT Review Conference Final Document, Principles and Objectives for Nuclear Non-Proliferation and Disarmament, NPT/CONF.1995/32 (Part I), Annex, available at http://disarmament.un.org/WMD/npt/1995dec2.htm. 35

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ing the non-nuclear weapon states and nuclear weapon-free zones against the use or threat of use of nuclear weapons.”40 Therefore, the General Assembly has still called for negotiations to bring about legally binding assurances.41 Consequently, negative security assurances given by France, Russia, the UK and the United States in relation to the Non-Proliferation Treaty cannot be considered to be legally binding, and, from a strict legal point of view, the US is free to withdraw from its promises. Thus, it is no surprise that, for the first time, in December 2006 the US Administration even voted against the regular General Assembly Resolution, which calls for a legally binding international mechanism.42

2. Negative Security Assurances and Preemption The reason for the position of the US administration is evident. The administration did not want to restrict its possibilities to counter perceived threats by terrorist and rogue states. Since non-nuclear weapon states might well serve as safe havens and since the United States under the Bush Administration have tried to establish a doctrine of preemptive self-defense, the United States have so far rejected negative security assurances as inappropriate restrictions on their security policy and have interpreted remaining obligations restrictively, thus reducing their value. The Clinton Administration already agreed to implement modifications, which would allow for certain nuclear weapons to be used as so-called “bunker-busters” for raids on biological or chemical weapons stored underground.43 Under the Bush Administration, the 1995 promise that the United States will not use nuclear 40 Letter dated 6 April 1995 from the Permanent Representative of China to the United Nations addressed to the Secretary-General, UN Doc. A/50/155, para. 3: “China has always held that, pending the complete prohibition and thorough destruction of nuclear weapons, all nuclear-weapon States should undertake not to be the first to use nuclear weapons and not to use or threaten to use such weapons against non-nuclear-weapon States and nuclearweapon-free zones at any time or under any circumstances. China strongly calls for the early conclusion of an international convention on no-first-use of nuclear weapons as well as an international legal instrument assuring the non-nuclear-weapon States and nuclearweapon-free zones against the use or threat of use of nuclear weapons.” 41 UN Doc. A/Res/62/19, 10 January 2008, Conclusion of effective international arrangements to assure non-nuclear-weapon States against the use or threat of use of nuclear weapons, para. 1. 42 UN Doc. A/61/PV. 67, 6 December 2006, Comprehensive Nuclear-Test-Ban Treaty, 38; see also A/62/PV. 61, 30 November 2006, Conclusion of effective international arrangements to assure non-nuclear-weapon States against the use or threat of use of nuclear weapons, 7. 43 Bunn/du Preez (note 32).

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weapons except in cases of armed attack had been replaced by the 2002 National Security Strategy. In this Strategy the President underlines that “to forestall all hostile attacks by rogue states or terrorists the US will, if necessary, act preemptively.”44 This statement is backed by the 2002 National Strategy to Combat Weapons of Mass Destruction. Here it is stated that US counterproliferation forces “must posses the full range of operational capabilities to counter the treat and use of weapons of mass destruction …”45 These statements imply that the United States wants to retain the right to first use of nuclear weapons to “destroy enemy chemical and biological weapons stockpiles before they can be used in an attack.”46 Such an understanding, however, is not in line with international law since the ICJ stated that a threat or use of force by means of nuclear weapons is unlawful if it is contrary to Article 2 (4) and fails to meet all the requirements of Article 51 UN Charter.47 As a consequence of its policy, the US administration declined any discussion on legally binding negative security assurances at the 2005 Review Conference and thus set one of the major reasons for the failure of the conference.48

II. Effects on the Validity of the Non-Proliferation Treaty? A persistent failure to enforce a central treaty provision such as Article VI of the Non-Proliferation Treaty raises the question whether the non-nuclear weapon states could not terminate the treaty.

1. Termination for Breach or clausula rebus sic stantibus? A state party may terminate or withdraw from a treaty or suspend its operation according to Article 60 of the Vienna Convention on the Law of Treaties or under customary international law49 in case of a material breach. A state party could also

44

US, The National Security Strategy of the United States of America, September 2002, available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss.pdf. 45 US, National Strategy to Combat Weapons of Mass Destruction, December 2002, available at http://georgewbush-whitehouse.archives.gov/news/releases/2002/12/WMD Strategy.pdf. 46 Bunn/du Preez (note 32). 47 Legality of the Use or Threat of Nuclear Weapons (note 7), 265, para. 105. 48 Bunn/du Preez (note 32). 49 Gabþíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7 (38, para. 46). Although the Vienna Convention is not directly applicable to the Non-Prolif-

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invoke the clausula rebus sic stantibus. The clausula deals with a fundamental change of circumstances, on which a state may rely in order to terminate a treaty. On the one hand the clausula is, in principle, applicable to the Non-Proliferation Treaty which contains a termination clause in Art. X since Article 62 of the Vienna Convention is not restricted to treaties with no such clause.50 Likewise, the clausula is pertinent since a legal obligation, such as Article VI of the Non-Proliferation Treaty with its quid pro quo character, can be seen as an essential basis of the parties’ consent.51 However, the clausula cannot be invoked if the change of circumstances must be considered as a breach of the treaty,52 which will be the case if a violation of Article VI of the Non-Proliferation Treaty can be considered a material breach of the Treaty. Thus, state parties will have to rely on Article 60 of the Vienna Convention for the termination or suspension of the Non-Proliferation Treaty because of the failure of the nuclear weapon states to disarm.53 In relation to the Non-Proliferation Treaty, state parties could base their intention to terminate the Treaty either on Articles 60 (2a) or (2c)54 of the Vienna Convention. Especially litera c) is pertinent here since it is directed at treaties, such as disarmament treaties, where a material breach by one party endangers the whole treaty regime because the violation of the treaty fundamentally affects the ability of each state party to comply with the treaty. If no agreement can be reached by the parties concerned, neither the first nor the second alternative is adequate to meet the interests of an individual party. The state party which wants to suspend the operation of the treaty in relation to the defaulting state runs the risk of breaking its own obligations towards other state parties. However, if such a suspension were not eration Treaty due to its Article 4, the provisions of the Convention which are pertinent for discussing the validity of the Treaty basically restate customary international law. 50 Anthony Aust, Modern Treaty Law and Practice, 2nd ed., Cambridge 2007, 297 et seq. 51 See Knut Ipsen (ed.), Völkerrecht, 5th ed. 2004, § 15 No. 93. 52 Malcolm Shaw/Caroline Fournet, Art. 62, in: Olivier Corten/Pierre Klein (eds.), Les conventions de Vienne sur le droit de traités, vol. III, 2006, 2232. 53 See on the effects of the changing security situation on the Non-Proliferation Treaty in general Krieger (note 2), 17 et seq. 54 Art. 60 (2) of the Vienna Convention on the Law of Treaties: “A material breach of a multilateral treaty by one of the parties entitles … a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) In the relations between themselves and the defaulting State; or (ii) As between all the parties …; c) Any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.”

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allowed, a state party would not be able to protect vital interests in relation to a party, which does not obey its disarmament obligations.55

2. Failure to Disarm as a Material Breach? Thus, it is decisive to analyze whether the failure of the nuclear weapon states to achieve any measure of real nuclear disarmament constitutes a material breach of Article VI of the Non-Proliferation Treaty. According to the ICJ, “it is only a material breach of the treaty itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty.”56 According to Article 60 (3b) of the Vienna Convention, a material breach is the violation of a provision essential to the accomplishment of the object and purpose of the treaty.57 Even an important ancillary treaty norm may constitute such an essential provision.58 The obligation to negotiate in good faith, which is included in Article VI of the Non-Proliferation Treaty, is considered a quid pro quo for the renunciation of non-nuclear weapon states. The drafting history of the Non-Proliferation Treaty underlines this quid pro quo relation and was restated at the 2005 Review Conference. The meaning of the provision for the accomplishment of the object and purpose of the Treaty can also be deduced from the Preamble. Here it is, inter alia, stated in paras. 8 and 9 that state parties declare “their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament,” and that they urge “the cooperation of all States in the attainment of this objective …” Correspondingly, observers have held that Article VI of the Non-Proliferation Treaty is “the single most important provision … from the standpoint of long-term success or failure of its goal of proliferation prevention.”59 Thus, the Article is “an integral part of the … package, not just an ‘add-on.’”60 Consequently, Article VI of the Non-Proliferation Treaty constitutes a provision essential to the accomplishment of the object and purpose of the Treaty. 55

Aust (note 49), 294 et seq. Gabþíkovo-Nagymaros Project (note 48), 65, para. 106. 57 Art. 60 (3a) of the Vienna Convention is not applicable since none of the nuclear weapon states has repudiated the Treaty. 58 Aust (note 49), 295. 59 Edwin Brown Firmage, The Treaty on the Non-Proliferation of Nuclear Weapons, AJIL 63 (1969), 711–746, 732. 60 Rabinder Singh/Christine Chinkin, Mutual Defence Agreement and the Nuclear NonProliferation Treaty – Joint Advice, 26 July 2004, available at http://www.trident ploughshares.org/article1279, paras. 31, 32. 56

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However, it is doubtful that a material breach has already occurred. Despite the negative perspective on disarmament it seems difficult to argue that nuclear weapon states have consistently refused to negotiate in a meaningful way with non-nuclear weapon states. The ICJ found in its Advisory Opinion on the Legality of Nuclear Weapons that the obligation involved is an obligation to achieve a precise result, i.e., to conclude those negotiations. However, a clear deadline for achieving this result has never been set. Actually, the reason behind the differentiation within the Treaty regime was to acknowledge that a period of time would be needed during which the nuclear weapon states could negotiate for a regime under which disarmament seems possible.61 Thus, at the 1995 Review and Extension Conference, non-nuclear weapon states were unsuccessful in obtaining specific commitments from nuclear weapon states to achieve genuine nuclear disarmament within a concrete time.62 The construction of the non-proliferation system acknowledges that genuine disarmament depends on a long process of negotiations, including repeated set-backs. As long as nuclear weapon states participate in disarmament efforts at the international level, negotiations in good faith continue. Moreover, the criterion of good faith negotiations leaves room for security concerns of the parties involved. Thus, the decisive set-backs in negotiations since 2001 – inter alia because of the United States refusal to provide legally binding negative security assurances – might be seen as a protection of vital interests in the face of the uncontrolled spread of nuclear weapons and fissile material among non-state actors. Although the 2002 US National Strategy to Combat Weapons of Mass Destruction is not in line with international law, the United States is still free to respond to perceived threats through diplomatic means as long as they continue the negotiations within the non-proliferation regime. Moreover, the US administration’s approach between 2001 and 2008 might just be a momentary set-back. Thus, in April 2009 President Obama and the Russian President Medvedev issued a Joint Statement in which they agreed “to work together to fulfill (their) obligations under Art. VI of the NPT.”63 Finally, there are no pertinent statements of non-nuclear weapon states which would invoke Article 60 of the Vienna Convention. North Korea, for instance, relied on the regular termination clause in Article X of the Non-Proliferation

61

Ian Anthony, Reflections on Continuity and Change in Arms Control Law, SIPRI Yearbook 2006, 587–606 (592 note 16). 62 Bosch (note 9), 383. 63 Joint Statement by President Obama and President Medvedev, Washington 1 April 2009, available at http://www.america.gov/st/texttrans-english/2009/April/2009040112 5216xjsnommis8078381.html

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Treaty64 when it announced its withdrawal in 2003.65 The interests of the nonnuclear weapon states are not served by the termination of the Non-Proliferation Treaty, which, despite its weaknesses, is still – together with the United Nations – the most meaningful forum for non-proliferation and disarmament. Let me remind you once more that Article VI of the Non-Proliferation Treaty is the only existing treaty provision which obliges nuclear weapon states to negotiate nuclear disarmament agreements with the aim to end negotiations successfully. Thus, “performance and compliance are what is required, not termination of the Treaty.”66

E. Revival of Disarmament What else can be done in view of the United States’ reluctance to come back to the road to disarmament? From various suggestions made on the political plane, three steps seem urgent within the United States and on the international level: In the US the Obama Administration intends to achieve ratification of the Comprehensive Test Ban Treaty by the Senate.”67 On the international plane, it seems urgent to pursue a production stop on fissile materials for weapons globally, inter alia in order to meet the United States’ security concerns.68 The United States submitted a pertinent draft treaty to the Conference on Disarmament in 2006.69 Finally, the issue of negative security assurances must be resumed by the US administration for 64 Article X (1) of the Non-Proliferation Treaty provides: “Each party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.” 65 See Frederic Kirgis, North Korea’s Withdrawal from the Nuclear Non-Proliferation Treaty, ASIL Insight, January 2003, available at: http://www.asil.org/insights/insigh 96.htm. 66 Singh/Chinkin (note 59), para. 49. 67 Remarks by President Obama, Prag, 5 April 2009, available at Remarks by President Obama, Prag, 5 April 2009, available at http://whitehouse.gov/the_press_office/RemarksBy-President-Barack-Obama-In-Prague-As-Delivered/. 68 Shultz/Perry/Kissinger/Nunn (note 6). 69 US Mission to the United Nations in Geneva, Stephen G. Rademaker, Acting Assistant Secretary, Bureau of International Security and Nonproliferation, Statement to the Conference on Disarmament, Geneva, Switzerland, 18 May 2006, available at http:// geneva.usmission.gov/Press2006/0518RademakerCDstatement.html; see also for the text of the proposal http://geneva.usmission.gov/Press2006/0518DraftFMCT.html.

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the 2010 Review Conference of the Non-Proliferation Treaty. At minimum, political pledges of non-use should be issued again with the participation of the UN Security Council.70 Likewise, a procedure could be installed to find ways to agree on legally binding assurances. The cost for such promises is not particularly high, since nothing would be promised to which the United States is not bound under international law. In its Advisory Opinion on the Legality of the Use or Threat of Nuclear Weapons the ICJ made clear that the “threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and, in particular, the principles and rules of humanitarian law.” Only for extreme circumstance of self-defense, in which the very survival of a state would be at stake, the Court was unable to conclude definitely that the threat or use of nuclear weapons would be unlawful.71 Looking at the present state of things Kissinger and Shultz have a strong point. Disarmament is not merely a utopian goal for pacifists. It is a major issue on the political agenda in the coming years. The idea of taking disarmament seriously is not based on the simplistic belief that, without nuclear weapons, there is nothing to proliferate. Rather, it is about restoring the credibility and legitimacy of the nonproliferation system as a whole.

70 71

Bunn/du Preez (note 32). Legality of the Use or Threat of Nuclear Weapons (note 7), 266, para. 105.

Keeping Weapons of Mass Destruction from Terrorists – An International Law Perspective By Christian Schaller

A. Assessing the Threat Reports of incidents involving the acquisition or use of biological, chemical, radiological, or nuclear material by non-state actors so far do not display an alarming trend towards the spread of catastrophic terrorist attacks with weapons of mass destruction (WMD).1 Nevertheless, the possibility and potential consequences of such an attack must not be underestimated. Obviously the direct physical impact of such a strike may vary considerably depending on the nature and the quantity of the material used. In any case, however, the attack would have severe psychological, social and economic after-effects, not to mention the political implications. Developing and maintaining an infrastructure to produce enriched uranium or plutonium for nuclear weapons seems to overstrain the capabilities of terrorist networks. A more realistic option would be for terrorists to acquire such weapons and components on the black market or to steal them from existing arsenals. In 1995 the International Atomic Energy Agency (IAEA) invented a database on incidents of illicit trafficking and other unauthorized activities involving nuclear and radioactive sources. From January 1993 to December 2006, a total of 275 cases of illicit trafficking were confirmed to the database, fifteen of which concerned high enriched uranium and plutonium. In addition, 332 reported incidents relate to the theft or loss of nuclear or other radioactive material, and 398 cases involved other unauthorized activities, such as the disposal of radioactive substances or discovery of “orphan sources.”2 Another alarming scenario is built on the assumption that terrorist attacks could be carried out against nuclear facilities or transports. More1

See Monterey WMD Terrorism Database, Center for Nonproliferation Studies, available at http://cns.miis.edu/wmdt/; John Parachini, Putting WMD Terrorism into Perspective, The Washington Quarterly 26 (2003), 37–50. 2 IAEA Illicit Trafficking Database (ITDB), available at http://www-ns.iaea.org/ security/itdb.htm.

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over, there is a certain risk that terrorists build and use dirty bombs. These are explosive devices designed to disperse radioactivity and contaminate specific target areas. The material for such weapons, mostly radioactive waste, could be obtained from research laboratories, hospitals or various industries. Since dirty bombs are not likely to produce very large numbers of casualties, they usually are not subsumed under the category of WMD. Nevertheless, they have a high potential of causing terror and mass disruption, especially if detonated in the center of major cities. With regard to the threat of biological and chemical terrorism many experts are divided on the probability of a large scale attack.3 The challenge for terrorist groups is not so much to get access to the necessary precursors. While certain weaponusable agents and substances could be produced with little know-how in simple laboratories, their actual handling and use is rather difficult. A particular problem would be to deliver biological weapons on large areas. Despite considerable technical and financial resources, for example, the Japanese group Aum Shinrikyo, which carried out the sarin nerve gas attack on the Tokyo subway in 1995, failed to effectively weaponize anthrax and botulinum.4 Even the direct use of toxic chemicals is not likely to cause high numbers of fatalities. Nevertheless, it cannot be excluded that more serious incidents will occur in the future, such as attacks against industrial facilities that would release highly toxic chemicals.

B. Strategic Framework All international and national security strategies share a common feature in that they do not exclude any means of combating the threat of WMD terrorism. At the same time there are considerable differences in focus and substance, depending on the political and strategic culture of the relevant states and organizations. The counterterrorism strategies of the United Nations5 and the European Union,6 for example, place more emphasis on multilateral and law-based responses. Accordingly, both organizations dedicate significant resources to developing universal 3

See Hans Blix et al., The Weapons of Mass Destruction Commission, Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical Arms, 2006, 42. 4 Natasha Bajema/Cyrus Samii, Weapons of Mass Destruction and the United Nations: Diverse Threats and Collective Responses, International Peace Academy Report, 2004, 6. 5 The United Nations Global Counter-Terrorism Strategy, GA Res. 60/288, 8 September 2006. 6 The European Union Counter-Terrorism Strategy, 30 November 2005, available at http://ec.europa.eu/justice_home/fsj/terrorism/strategies/fsj_terrorism_strategies_ counter_en.htm.

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standards and state capacities in this area. On the other hand, the policy pursued by the United States tends to be more skeptical of traditional multilateral approaches, especially in the field of arms control and disarmament. Instead, there is greater readiness to rely on unilateral action and ad hoc coalitions of the willing as well as on more coercive measures, such as the Proliferation Security Initiative (PSI) and other counterproliferation instruments. “Counterproliferation” is sometimes used as a generic term for a wide range of proactive and robust measures, including targeted military operations, to deter and prevent states and non-state actors from acquiring WMD.7 Both within the US National Security Strategy8 and the National Strategy to combat WMD,9 counterproliferation is defined as a principal pillar of US action, whereas the EU Strategy against the proliferation of WMD10 does not even introduce this term. The most comprehensive and detailed concept for tackling WMD related threats is laid down in the 2006 US National Strategy For Combating Terrorism11 which formulates six objectives: (1) determine terrorists’ intentions, capabilities, and plans to develop or acquire WMD – an effort which is highly dependent on relevant sources of information and, thus, susceptible to the typical flaws inherent in national and international intelligence cooperation; (2) deny terrorists access to the materials, expertise, and other enabling capabilities required to develop WMD – this is one of the areas which currently receives much attention from the international community especially with regard to securing stocks of weapon-usable material; (3) deter terrorists from employing WMD – an issue which so far does not play a major role in many other strategies since it is widely assumed that the traditional concept of deterrence does not work against actors who show disregard 7

On strategies, instruments and legal aspects of counterproliferation Wolff Heintschel von Heinegg, Countering the Proliferation of Weapons of Mass Destruction: The Case of Non-State Actors, in: Pierre-Marie Dupuy et al. (eds.), Common Values in International Law, Essays in Honour of Christian Tomuschat, 2006, 797–814; Michael P. Scharf, Clear and Present Danger: Enforcing the International Ban on Biological and Chemical Weapons through Sanctions, Use of Force, and Criminalization, Michigan Journal of International Law 20 (1999), 477–521. 8 The National Security Strategy, March 2006, available at http://www.whitehouse. gov/nsc/nss/2006/. 9 National Strategy to Combat Weapons of Mass Destruction, December 2002, available at http://www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf. See also the National Military Strategy to Combat Weapons of Mass Destruction, 13 February 2006, available at http://www.defenselink.mil/pdf/NMS-CWMD2006.pdf. 10 European Union Strategy Against Proliferation of Weapons of Mass Destruction, 10 December 2003, available at http://ue.eu.int/uedocs/cmsUpload/st15708.en03.pdf. 11 National Strategy For Combating Terrorism, September 2006, available at http:// www.whitehouse.gov/nsc/nsct/2006/nsct2006.pdf.

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for their own lives as is the case with many Islamist terror networks; (4) detect and disrupt terrorists’ attempted movement of WMD-related materials, weapons, and personnel – in this field a lot of effort has been made during the recent years to strengthen border controls, combat illicit brokering and trafficking in such items and prosecute alleged offenders; (5) prevent and respond to a WMD-related terrorist attack – which includes military measures in self-defense against imminent and future attacks; and (6) define the nature and source of a terrorist-employed WMD device – also with a view to disrupt follow-on attacks.12 By contrast, the report of the UN Secretary-General of 2006,13 the conceptual basis of the UN Global Counter-Terrorism Strategy, as well as the 2005 EU Counter-Terrorism Strategy do not as extensively and systematically elaborate on combating the linkage between terrorism and the proliferation of WMD. The UN Secretary-General’s report stands out in particular for its substantial reference to the challenge of biological terrorism, which seems to be the most important underaddressed threat, whereas much attention is traditionally being paid to nuclear terrorism. This is reflected especially by the increased engagement of the IAEA and the progress made in adapting the international legal framework to the nuclear threat.

C. Normative Framework The primary function of international law in combating WMD terrorism is to establish binding standards for concerted action. The regimes against international terrorism and against the proliferation of WMD are shaped mainly by international treaties and mandatory Security Council resolutions. While international treaties are binding for state parties only, the decisions of the Security Council taken under Chapter VII of the UN Charter must be carried out by all states according to Art. 25 and 48 of the Charter. At the same time international law plays an important role in mitigating the potentially adverse consequences of specific counterterrorism and counterproliferation operations as it is supposed to protect the sovereign rights of states and to guarantee fundamental human rights. I. International Anti-Terrorism Law Currently there are thirteen major international conventions and protocols in force dealing with different aspects of terrorism. Some of these instruments, like 12

National Strategy For Combating Terrorism (note 11), 14. Uniting against terrorism: recommendations for a global counter-terrorism strategy, Report of the Secretary-General, UN Doc. A/60/825, 27 April 2006. 13

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the International Convention for the Suppression of Terrorist Bombings of 1997 (Bombing Convention)14 or the International Convention for the Suppression of the Financing of Terrorism of 1999 (Financing Convention),15 are also applicable to cases in which WMD are to be acquired or used for an attack. Only three of the thirteen conventions, however, are specifically designed to combat the nexus between terrorism and WMD. These are the Convention on the Physical Protection of Nuclear Material of 1980 (Physical Protection Convention, currently being subject to amendment),16 the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and its Protocol on Fixed Platforms of 1988 (both of which are to be significantly amended by a 2005 Protocol not yet in force),17 and the International Convention for the Suppression of Acts of Nuclear Terrorism of 2005 (Nuclear Terrorism Convention).18 Like other sectoral anti-terrorism conventions, these instruments have been adopted with a special focus on the criminalization of certain acts, on criminal prosecution and extradition as well as on facilitating interstate cooperation in such matters. Despite the remarkable quantity and density of international anti-terrorism treaty law, the whole regime still suffers from extreme fragmentation. In particular, the linkage between terrorism and WMD is not sufficiently tackled under existing law. Gaps in international regulation exist, for example, with regard to the suppression of acts of biological and chemical terrorism and the interdiction of land and air transport of WMD. Another under-addressed issue is the proliferation of delivery systems for WMD. The lack of coherence and consistency between different anti-terrorism conventions and other legal regimes has also appeared to be a problem. In particular the general delineation between anti-terrorism law and international humanitarian law in situations of armed conflict raises some dogmatic and political concerns. For 14

International Convention for the Suppression of Terrorist Bombings, UNTS, vol. 2149, 256. 15 International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, 9 December 1999, annex (A/RES/54/109). 16 IAEA Board of Governors, General Conference, Nuclear Security – Measures to Protect Against Nuclear Terrorism, Amendment to the Convention on the Physical Protection of Nuclear Material, Report by the Director General, IAEA Doc. GOV/INF/2005/10GC(49)/INF/6, 6 September 2005. 17 International Maritime Organization (IMO), International Conference on the Revision of the SUA Treaties, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Text adopted by the Conference, IMO Doc. LEG/CONF.15/21, 1 November 2005. 18 International Convention for the Suppression of Acts of Nuclear Terrorism, GA Res. 59/290, 13 April 2005, annex (A/RES/59/290).

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several years now this issue has proven to be a stumbling block for the negotiations of a Draft Comprehensive Convention Against International Terrorism.19 Also heavily disputed is the question of whether certain activities of state military forces are to be governed by the Draft Convention.20 Currently there is no realistic expectation as to whether the Draft Comprehensive Convention, which is formally under negotiation in the Sixth Committee of the UN General Assembly, will be finalized at any time in the near future. Given the fragmentation and the limited reach of existing international anti-terrorism treaties, the UN Security Council in reaction to the 9/11 attacks adopted Resolution 1373 (2001) based on Chapter VII of the UN Charter. This Resolution, containing a universally binding, quasi-legislative catalog of state obligations, is the most sweeping international legal instrument against terrorism so far.21 Under the Resolution states are not only prohibited from providing any form of support to persons or entities involved in terrorist acts, they are also actively obliged to take specific measures in order to prevent the commission of such acts. This includes concrete action to curb and counter the supply of weapons to terrorists.

II. Norms on Non-Proliferation, Arms Control and Disarmament The risk that non-state actors could acquire, develop, transfer or use WMD was addressed by the Security Council in Resolution 1540 (2004).22 This instrument, 19

Draft Comprehensive Convention Against International Terrorism, UN Doc. A/59/ 894, 12 August 2005, appendix II. 20 While these issues are highly contended in the context of the Draft Comprehensive Convention Against International Terrorism (see Thomas Weigend, The Universal Terrorist. The International Community Grappling with a Definition, Journal of International Criminal Justice 4 (2006), 912–932), the scope of application of the Nuclear Terrorism Convention, however, is clearly regulated in Arts. 3 and 4. According to Art. 4 (1), for example, “(t)he activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.” 21 SC Res. 1373 (2001), 28 September 2001. On the quasi-legislative character of Resolution 1373 see Jurij Daniel Aston, Die Bekämpfung abstrakter Gefahren für den Weltfrieden durch legislative Maßnahmen des Sicherheitsrats. Resolution 1373 (2001) im Kontext, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 62 (2002), 257–291. 22 SC Res. 1540 (2004), 28 April 2004. The decisions and requirements of Res. 1540 (2004) were reiterated by the Security Council in Res. 1673 (2006), 27 April 2006, and

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like Resolution 1373, has a quasi-legislative effect in that it establishes a set of obligations under Chapter VII, which have not been included in an international treaty so far. Pursuant to Resolution 1540, states must adopt and enforce appropriate laws in order to prohibit certain WMD-related activities by non-state actors. In particular they must establish effective control mechanisms and secure such weapons and material in production, use, storage and transport. With its focus on non-state proliferation, Resolution 1540 is designed to close a gap within the system of traditional non-proliferation, arms control and disarmament treaties. Despite some structural shortcomings the Nuclear Non-Proliferation Treaty of 1968 (NPT),23 the 1972 Biological Weapons Convention (BWC),24 and the Chemical Weapons Convention of 1993 (CWC)25 still resume an important function in combating WMD terrorism. According to the BWC each state party is, for instance, prohibited from transferring “to any recipient whatsoever” any of the weapons or items specified in the Convention. Moreover, states must prevent the development, acquisition etc. of such weapons under their jurisdiction and destroy or divert to peaceful purposes existing stocks.26 The CWC is even more detailed and specific in addressing these issues. In particular it expressly obliges each state party to actively prohibit natural and legal persons under its jurisdiction from undertaking any of the activities banned by the Convention.27 On the other hand, the NPT shows a completely different design owed to its specific focus on non-proliferation. It establishes a prohibition on the transfer of nuclear weapons and other nuclear explosive devices only for nuclear weapon state parties, whereas every non-nuclear weapon state party is bound not to manufacture or otherwise acquire such weapons and devices.28 The fulfillment of this obligation is subject to verification by the IAEA in order to prevent nuclear energy from being diverted from peaceful uses to the production of nuclear weapons. Therefore, each non-nuclear

Res. 1810 (2008), 25 April 2008. On the quasi-legislative character of Res. 1540 see Andreas Zimmermann/Björn Elberling, Grenzen der Legislativbefugnisse des Sicherheitsrats. Resolution 1540 und abstrakte Bedrohungen des Weltfriedens, Vereinte Nationen 2004, 71–77. 23 Treaty on the Non-Proliferation of Nuclear Weapons, UNTS, vol. 729, 161. 24 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, GA Res. 2826 (XXVI), 16 December 1971 Annex (A/RES/2826 (XXVI)). 25 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, UNTS vol. 1974, 45. 26 Arts. II, III and IV BWC. 27 Art. I (1) (a), (d) and (2); Art. VII CWC. 28 Arts. I and II NPT.

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weapon state party must accept certain safeguards under the control of the IAEA.29 The whole regime, however, suffers from severe erosion which is closely linked to certain structural flaws.30 This has led the US and other states to pursue alternative and non-conventional approaches to tackle the spread of nuclear weapons.

III. Informal Arrangements and Initiatives Various programs and action plans have been developed by UN bodies, international organizations and ad hoc groups of states with a view to combating terrorism and the proliferation of WMD.31 Only a few of these instruments have a strategic impetus, some function as a means of setting quasi-legal standards and others are designed to facilitate the implementation of existing obligations. Most prominent among the informal arrangements dealing with traditional issues of non-proliferation are the Zangger Committee, which aims at harmonizing nuclear export control policies under the NPT,32 as well as the Nuclear Suppliers Group concentrating on the establishment of guidelines for nuclear exports and nuclearrelated exports.33 In the biological and chemical sector the harmonization of export controls is pursued especially by the Australia Group,34 whereas the proliferation of delivery systems is addressed by the Missile Technology Control Regime35 and the Hague Code of Conduct against Ballistic Missile Proliferation.36 In addition to these arrangements there are also some initiatives focusing on the nexus between terrorism and the proliferation of WMD such as the Proliferation 29

Art. III (1) NPT. The verification regime is still insufficient to ensure that all parties live up to their treaty obligations. Thus, there is a palpable risk that some states, under cover of their right to develop, research, produce and use nuclear energy for peaceful purposes as enshrined in Art. IV of the NPT, will covertly and illegally develop full-scale weapons programs. Similarly, a member of the NPT could acquire the know-how, technology or material and then withdraw from the treaty with the aim of subsequently launching a nuclear weapons program, thus evading the IAEA safeguards mechanisms. 31 For an overview over the activities of states and international organizations in this sector see the annual reports of the UN Secretary-General, Measures to prevent terrorists from acquiring weapons of mass destruction (latest report: UN Doc. A/62/156, 27 July 2007). 32 http://www.zanggercommittee.org. 33 http://www.nuclearsuppliersgroup.org. 34 http://www.australiagroup.net/en/index.html. 35 http://www.mtcr.info. 36 For a closer analysis of each of these informal arrangements see Blix et al., Weapons of Terror (note 3). 30

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Security Initiative (PSI) founded by the US in 2003. Another important forum is the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction.37 Under this partnership the G8 supports specific cooperation projects to address non-proliferation, disarmament, counterterrorism and nuclear safety issues. The destruction of chemical weapons, the dismantlement of decommissioned nuclear submarines, the disposition of fissile materials and the employment of former weapons scientists were defined as some of the priority concerns when this initiative was founded in 2002.

D. Specific Approaches The following sections focus on three different but complementary approaches forming part of a broader effort to keep WMD from terrorists: international criminalization, physical protection of WMD and related material, and measures to interdict the transfer of such items.

I. International Criminalization International criminalization is one of the standard multilateral tools in the fight against terrorism and organized crime. Through the adoption of an international treaty or a binding Security Council resolution, legal obligations can be created, according to which states must ensure the prosecution of certain acts under their national law. These regulations are sometimes labeled as “transnational criminal law.”38 In contrast to the core crimes of “international criminal law,” which are firmly established by customary law and the Rome Statute of the International Criminal Court, such specific treaty crimes do not create an automatic penal responsibility of the individual. Instead, the acts must be made punishable in each domestic criminal system. Moreover, these conventions usually contain some provisions on jurisdiction, extradition, and interstate cooperation, as well as on the fair treatment of alleged offenders and detainees.39 37

http://www.g8.gc.ca/2002Kananaskis/globpart-en.asp; http://www.g8.fr/evian/english/ navigation/2003_g8_summit/summit_documents.html. 38 Neil Boister, Transnational Criminal Law?, European Journal of International Law (EJIL) 14 (2003), 953–976. 39 For example, Art. 17 of the Nuclear Terrorism Convention, just as Art. 16 of the Financing Convention and Art. 13 of the Bombing Convention, contains a specific provision on the rendition of persons detained or serving a sentence under the Convention: If the presence of such a person is requested by another state party for the purpose of obtaining

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When drafting an anti-terrorism convention it is of utmost importance to carefully define the offences and scope of application in such a way that it can be effectively implemented at the national level in accordance with the principles of legal certainty and legal clarity. The term “terrorism,” for instance, is not used in a legal sense by any of the existing conventions due to the inability of states to agree on a general definition.40 Rather, all of these instruments describe certain acts, which are widely perceived as terrorist in nature and which “are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.”41 Even if a convention is carefully drafted, there will always remain some discrepancies and inconsistencies in its application under different national criminal law systems. On the one hand it is obvious that an international treaty cannot be expected to match all the doctrinal subtleties of highly advanced national codes. On the other hand, the requirements set by such a convention may also overburden some states, which do not have the capacity to ensure effective implementation.

1. The Nuclear Terrorism Convention as a Prototype One of the main achievements of the Nuclear Terrorism Convention (NTC) is the definition of new crimes under international law reflecting the particular seriousness of a potential act of nuclear terrorism.42 The attempt to capture a wide range of dangerous activities is mirrored by the relatively broad protective scope of the Convention: for the first time an international anti-terrorism treaty includes the environment as a protected good in the definition of offences under Art. 2. Just as remarkable is the fact that the Convention – in contrast to many other anti-terrorism instruments – does not establish a specific requirement according to which the purpose of the act must be to intimidate a population, or to compel a government or an international organization.43 Thus, any unlawful and intentional posses-

evidence during an investigation or prosecution, the legality of the rendition would be dependent upon the consent of the person concerned. 40 On the endeavor to develop a definition of terrorism under international law see Ben Saul, Defining Terrorism in International Law, 2006; Christian Walter, Defining Terrorism in National and International Law, in: Christian Walter et al. (eds.), Terrorism as a Challenge for National and International Law: Security versus Liberty?, 2004, 23–43. 41 Cf. Art. 6 NTC. 42 See note 18. On the Convention see Christopher C. Joyner, Countering Nuclear Terrorism: A Conventional Response, EJIL 18 (2007), 225–251. 43 Such a requirement is, inter alia, part of the definition of offences in Art. 2 (1) (b) of the Financing Convention (note 15) as well as in Art. 2 (1) of the Draft Comprehensive

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sion of radioactive material or of a special device with the intent to cause death, serious bodily injury, or substantial damage to property or to the environment is outlawed under the Convention.44 Furthermore, an offence will also be committed if a person actually uses such material or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material.45 In addition, Art. 2 covers all cases in which a person unlawfully demands radioactive material, a device or a nuclear facility by threat or use of force.46 Finally, the Convention even takes into account the close connection between international terrorism and transnational organized crime as it covers related activities in the field of nuclear smuggling and illegal nuclear arms trafficking.47 In regulating issues of jurisdiction the NTC follows the standard pattern of other anti-terrorism conventions.48 In any case the state party in the territory of which the alleged offender is present shall either extradite that person or establish jurisdiction and submit the case without undue delay to its competent authorities for the purpose of prosecution (principle of aut dedere aut judicare).49

Convention Against International Terrorism (note 19). See also Operational Paragraph (OP) 3 of SC Res. 1566 (2004), 8 October 2004. 44 Art. 2 (1) (a) NTC. 45 Art. 2 (1) (b) NTC. An “intent to compel” in this context is just one of three alternative conditions under which the offence may be committed, i.e. it is equivalent to “the intent to cause death or serious bodily injury” and to “the intent to cause substantial damage to property or to the environment.” 46 Art. 2 (2) (b) NTC. 47 See in particular Art. 2 (4) NTC: Any person also commits an offence if that person: (…) (c) In any other way contributes to the commission of one or more offences as set forth in paras. 1, 2 or 3 of the present article by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned. 48 Art. 8 (1) NTC requires each state party to establish its jurisdiction according to the principles of territoriality and nationality as well as in cases in which the offence is committed on board a vessel flying its flag or an aircraft registered under its laws. According to Art. 9 (2) NTC state parties may also establish their jurisdiction when the offence is committed against a national of that state (passive personality principle); when it is committed against its facilities abroad (protective principle); when it is committed by a stateless person who has his or her habitual residence in the territory of that state; when it is committed in an attempt to compel that state to do or abstain from doing any act; or when the offence is committed on board an aircraft which is operated by its government. 49 Art. 9 (4), Art. 11 NTC.

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2. Other Convention-Based Crimes Like in Art. 2 of the NTC, the definition of offences contained in the amendment to Art. 7 of the Physical Protection Convention does not – with one exception50 – require an intent to intimidate a population or to compel a government. Rather, any unauthorized receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material which causes or is likely to cause death or serious injury or substantial damage to property or to the environment is considered an offence within the meaning of the Convention. The unauthorized moving of nuclear material into or out of a state shall constitute an offence even without causing any injury or damage at all. Moreover, the Convention obligates states to criminalize certain acts directed against nuclear facilities as well as any theft or robbery of nuclear material. The most detailed provisions for criminalization are included in the 2005 Protocol to the SUA Convention. Only some of these provisions, however, address the nexus between terrorism and WMD. According to Art. 3bis of the Protocol, any person commits an offence within the meaning of the Convention if that person uses against a ship or discharges from a ship an explosive, radioactive material or a biological, chemical or nuclear weapon in a manner that causes or is likely to cause death or serious injury or damage – provided that the purpose of the act is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.51 Other prohibitions relate to the transport on board a ship of WMD and certain material.52 And finally even the transport 50

See Art. 7 (1) (g) (ii) of the Amendment to the Physical Protection Convention (note 16): a threat to commit an offence described in sub-paragraphs (b) and (e) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act. 51 Art. 3bis (1) (a) (i) of the SUA Convention (consolidated version (note 17)). 52 Art. 3bis (1) (b) of the SUA Convention (consolidated version (note 17)): Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally: (…) (b) transports on board a ship: (i) any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, with or without a condition, as is provided for under national law, death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act; or (ii) any BCN weapon, knowing it to be a BCN weapon as defined in article 1; or (iii) any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; or (iv) any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.

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of a person shall be established an offence as far as it is known to the offender that the person has committed a crime under the SUA Convention or other anti-terrorism treaties and the transport is intended to assist that person in evading criminal prosecution.53

3. Criminalization by the Security Council Resolution 1373 (2001) and Resolution 1540 (2004) establish some more general obligations for states to criminalize and prosecute terrorist- and WMD-related activities. In contrast to the relevant treaties, the resolutions do not contain any definitions of offences.54 Thus, it is entirely left to every state to define such crimes within their national penal codes. Some guidance and technical assistance in the implementation of both resolutions is offered by two committees which were established by the Security Council as subsidiary organs: the Counter-Terrorism Committee (CTC) with its Counter-Terrorism Executive Directorate (CTED)55 and the 1540 Committee.56 These bodies are, inter alia, entrusted with disseminating best practices, identifying existing technical, financial, regulatory and legislative assistance programs, and serving as an intermediary for contacts between assistance providers and recipients. The 1540 Committee, for example, maintains a legislative database for the purpose of providing additional information on the national implementation of regulations and measures related to the resolution.

II. Physical Protection of WMD and Related Material Denying terrorists access to WMD, related precursors, technology and knowhow begins with diligent accounting for and the physical protection of certain critical material. States must have an exact knowledge of the quantities and location of such material and must be able to effectively secure it against unauthorized 53

Art. 3ter of the SUA Convention (consolidated version (note 17)). OP 2 (e) of SC Res. 1373 (2001) merely requires obligates states to “ensure that, (…), such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.” The only exception is OP 1 containing some more detailed provisions on criminalizing the provision and collection of funds for terrorist acts. OP 2 and OP 3 (d) of Res. 1540 (2004) require all states to “adopt and enforce appropriate effective laws” which prohibit non-state actors from certain WMD-related activities which and sanction violations of national export control laws. 55 http://www.un.org/sc/ctc. 56 http://www.un.org/sc/1540/. 54

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diversion. Of the three major non-proliferation, arms control and disarmament treaties only the CWC contains some provisions on securing storage facilities and on the disposal of old chemical weapons as toxic waste.57 As far as state parties have the right to develop, transfer and use toxic chemicals for purposes not prohibited under this Convention, they are under an obligation to ensure that such chemicals and related facilities are subject to verification by the Organization for the Prohibition of Chemical Weapons (OPCW) and will not be utilized by non-state actors for prohibited purposes.58 The BWC, however, does not in any way deal with the issue of physical protection. The only international treaty to address this problem in greater detail is the Convention on the Physical Protection of Nuclear Material. The Convention, which is currently being overhauled under the auspices of the IAEA, applies to nuclear material in use, storage and transport as well as to nuclear facilities used for peaceful purposes. It obligates all state parties to establish and maintain under their jurisdiction comprehensive physical protection regimes for nuclear material and such facilities.59 In implementing this obligation, states must apply certain “Fundamental Principles” concerning the allocation of responsibilities, the design of a legislative and regulatory framework, specific procedural standards, as well as concerning the development of a security culture. Moreover, different levels of physical protection are invented to be followed by all states when transporting nuclear material or authorizing the export, import or transit of such material. Finally, the Convention provides for rapid exchange of information and effective cooperation between states, the IAEA and other relevant international organizations in cases of theft or robbery of nuclear material and sabotage. Other provisions relate to the recovery, protection and return of radioactive material, which was used or planned to be used for criminal purposes. Apart from these treaties Security Council Resolution 1540 (2004) obliges all states, albeit in a very general way, to account for and secure biological, chemical and nuclear weapons, their means of delivery and related materials in production, use, storage and transport.60 The IAEA, which offers special services to advise member states in these matters, has continuously been developing doctrine and guidelines on the physical protection of nuclear material and nuclear facilities since 1972.61 In the chemical sector, the OPCW is dedicated to enhancing ethical 57

CWC (note 25), Annex on Implementation and Verification, Parts IV (A) and IV (B). Art. VI CWC. 59 Art. 2A of the Amendment to the Physical Protection Convention (note 16). 60 OP 3 (a) and (b) of SC Res. 1540 (2004). 61 The Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/ Rev.4 (corrected)). See also http://www.iaea.org/OurWork/SS/protection.html. 58

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standards against the involvement in prohibited chemical weapons activities by chemists, chemical engineers and other professionals. While both organizations have become more and more active in helping counter nuclear and chemical terrorism, an institutional gap remains with regard to the biological sector. As long as there is no equivalent international organization to serve as a treaty body for the Biological Weapons Convention, the main responsibility rests with individual states, the industry and specialized non-governmental organizations to initiate programs for inventing effective accountancy and control mechanisms, physical protection measures and ethical standards. Another approach of furthering physical protection on a larger scale is based on the concept of “cooperative threat reduction” (CTR) originating from an initiative started in the USA under the “Nunn-Lugar Program” of 1991. CTR involves activities that are directed at the dismantlement of WMD systems as well as at securing of related material. In 2004 the US announced a new comprehensive initiative, the Global Threat Reduction Initiative (GTRI), to address the issue of nuclear security, initially with a special focus on cooperation with Russia and other former Soviet republics. The mission of the GTRI is to remove or secure high-risk nuclear and radiological materials and equipment that could be used for nuclear weapons. Much financial resources have been devoted to such activities also under the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction.62

III. Interdiction of Shipments A major purpose of Resolutions 1373 (2001) and 1540 (2004) as well as of all anti-terrorism conventions is to promote interstate cooperation in the prevention and suppression of terrorist acts. To this end the Security Council in Resolution 1540 called upon all states “to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials.”63 Moreover, modern treaty law such as Art. 7 of the Nuclear Terrorism Convention formally obligates states to cooperate in the prevention of terrorist acts, including to counter in their respective territories preparations for the commission of such offences.64 The Proliferation Security Initiative (PSI) which was announced by the United States in 2003 in Krakow has become one of the most important cooperative counterproliferation instruments. It is complementary to 62

Note 37. OP 10 of Res. 1540 (2004). 64 See also Art. 9 of the Draft Comprehensive Convention Against International Terrorism (note 19). 63

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existing multilateral non-proliferation efforts and a means of implementing Resolution 1540. By now, more than 80 states as well as multilateral organizations, including the EU and NATO, have expressed support for the initiative.

1. The Proliferation Security Initiative as a Model for Cooperation Due to its informal nature the PSI is often described as a “statement of purpose” or an “activity.”65 It is aimed at establishing a web of partnerships around the globe to impede and stop illicit trafficking in WMD, delivery systems and related material. In particular it seeks to create synergies by enhancing coordination and cooperation among states, combining their capabilities and linking existing national and international authorities. In September 2003, the US and ten partner states agreed on a Statement of Interdiction Principles, which has been endorsed by many other countries supporting the initiative since then.66 The principles do not create any formal obligations but identify specific steps for effectively interdicting WMD-related shipments at sea, in the air and on land. To accomplish this goal states may resort to the full range of counterproliferation tools reaching from diplomatic means to intelligence, law enforcement and military interdiction operations as may be necessary to stop, search, and seize proliferation shipments. PSI partners continuously participate in operational expert meetings and exercises in order to enhance their collective ability for carrying out interdiction operations. The US and other PSI participants frequently emphasize that the initiative builds on and is consistent with national authorities and relevant international law. This view is corroborated by the narrow way in which the Statement of Interdiction Principles is drafted since the participants deliberately refrained from envisaging in the statement any action in zones outside their sovereign jurisdiction. Nevertheless, it cannot be excluded that states may feel compelled to carry out interdiction operations even on the high seas, especially when it comes to preventing acts of WMD terrorism.

2. Legal Issues Surrounding Interdiction Operations at Sea The legality of an act of interference with international shipping is to be determined basically along the lines of the UN Convention on the Law of the Sea of 65 See the official website of the PSI at http://www.proliferationsecurity.info, and the US website on the PSI at http://www.state.gov/t/isn/c10390.htm. 66 Proliferation Security Initiative: Statement of Interdiction Principles, Paris, 4 September 2003, available at http://www.proliferationsecurity.info/principles.html.

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1982 (UNCLOS) and customary international law.67 Least problematic under the law of the sea are interdiction operations conducted by a state against vessels flying its own flag and sailing in areas beyond the territorial sea of any other state. As far as a ship is entitled by a state to fly its flag it is automatically subject to its jurisdiction. The exclusive jurisdiction of the flag state on the high seas is expressly regulated in Art. 92 (1) UNCLOS. Jurisdiction over a foreign ship without the consent of the flag state may be exercised by a state only in its ports, internal waters and territorial sea. The primary rationale behind the PSI is to make full use of such authority with a view to stopping and searching suspected vessels and, as appropriate, to seizing their cargoes in areas subject to the territorial jurisdiction of the PSI participants.68 Only warships and other government ships operated for non-commercial purposes enjoy immunity against such action. Specific rights of the coastal state to enforce its national laws on board a vessel entering or leaving its internal waters follow from Art. 25 (2) and Art. 27 (2) UNCLOS. In the territorial sea (max. twelve nautical miles), however, any interference with foreign shipping may conflict with the freedom of navigation.69 Each coastal state has to respect the right of all foreign ships to innocent passage through its territorial sea. On the basis of Art. 25 (1) UNCLOS the coastal state may take action against foreign ships only to prevent passage which is not innocent. According to Art. 19 (1) passage is innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State”; and it must be in conformity with other rules of international law. The cases in which passage shall be considered to be prejudicial to the peace, good order or security of the coastal state are enumerated in para. 2 of Art. 19. The transport of WMD is not mentioned in this list and since 67

For a comprehensive discussion of the legal aspects of the PSI see, inter alia, Michael Byers, Policing the High Seas: The Proliferation Security Initiative, The American Journal of International Law 98 (2004), 526–545; Thomas Giegerich, Sicherheit auf See: Maßnahmen gegen die Verschiffung von Massenvernichtungswaffen an internationale Terroristen nach Völkerrecht und deutschem Recht, in: A. Zimmermann/C. Tams (eds.) Seesicherheit vor neuen Herausforderungen, 2008, 5–33; Heintschel von Heinegg, Countering the Proliferation of Weapons of Mass Destruction (note 7); Daniel H. Joyner, The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law, The Yale Journal of International Law 30 (2005), 507–548; Christian Schaller, Die Unterbindung des Seetransports von Massenvernichtungswaffen. Völkerrechtliche Aspekte der “Proliferation Security Initiative,” SWP Studie 2004/S 19. 68 Statement of Interdiction Principles (note 66), para. 4 (d). 69 See the comprehensive discussion by Michael A. Becker, The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea, Harvard International Law Journal 46 (2005), 131–230.

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there is no universally binding prohibition for states to transport WMD and related material, it is difficult to argue that any passage by a ship transporting such weapons on behalf of a state would automatically constitute a violation of international law. On the other hand, the Security Council in Resolution 1540 (2004) under Chapter VII of the UN Charter determined that the illicit trafficking in such weapons by non-state actors poses a threat to international peace and security and that it shall be prohibited by all states. Therefore, it must be legally possible for the coastal state to interdict shipments in its territorial sea if they are reasonably suspected of contravening prohibitions established under Resolution 1540. The right to innocent passage must not be used by states as pretext for circumventing this resolution. The legal leeway for interdicting foreign shipments on the high seas is rather limited since it may conflict with the basic right of all states to sail ships under their flag and exclusive jurisdiction according Art. 87, 90 and 92 UNCLOS. The freedom of the high seas, which is also firmly established in customary international law, requires any interdiction to be based on the consent of the flag state. Therefore, the US started to conclude various bilateral ship boarding agreements with major flag states such as Liberia, Panama etc.70 The purpose of these agreements is to promote cooperation whenever a vessel claiming nationality of one of the parties is suspected on reasonable grounds to be engaged in proliferation. In these cases the agreements provide for accelerated procedures to obtain consent for boarding, searching and detaining of the suspected vessel. Under some of the agreements an authorization to board may be even deemed to have been granted if there is no response from the requested party within two hours.71 Similar procedural regulations have also been included into the 2005 Protocol to the SUA Convention.72 Pursuant to this protocol boarding without the express authorization of the flag state, however, may be admissible only if the flag state has notified in advance his anticipated consent to such action to the UN Secretary-General. Both, the bilateral ship boarding agreements as well as the new SUA Convention, are important steps to broaden the legal basis for effectively combating proliferation and terrorist activities on the high seas. Much more controversial is the issue of whether a ship which is reasonably suspected to transport WMD on the high seas may be boarded outside the framework of these treaties and without the consent of the flag state. If at all, such action may be justified only in exceptional cases if there is an obvious terrorist link. It is widely assumed that every state has a general obligation under international law to 70 71 72

See http://www.state.gov/t/isn/c12386.htm. See, for example, the agreement between the United States and Liberia (note 70). Art. 8bis of the SUA Convention (consolidated version (note 17)).

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combat terrorist activities on its territory which are directed against another state. This implies that every coastal state must ensure that its territorial sea does not serve as a transportation route for the supply of terrorists with weapons. Likewise, every flag state is responsible for preventing ships operated under its jurisdiction from being used for terrorist purposes. As far as a state is not able to take the necessary measures itself, it is at least under a duty to cooperate with other states in the prevention of such activities. If a state refuses without cause or even with bad faith any cooperation on the request to stop and search a reasonably suspected vessel flying its flag, other states must be entitled to proceed accordingly even without the consent of that state. Arguments supporting that assumption may be derived from the aim and purpose of Resolution 1373 (2001) in connection with the rules on state responsibility. In extreme cases of an imminent terrorist attack such action may also be admissible as a means of individual or collective selfdefense under Art. 51 of the UN Charter or customary international law. None of the legal concepts discussed above, however, can be construed as offering a basis for long-term and routine controls of shipping on the high seas. Apart from this, the PSI raises some concerns under the principle of non-discrimination since it is specifically targeted at “states and non-state actors of proliferation concern.” Obviously it is up to the PSI participants themselves to decide which states and actors are considered to fall under this category.73 According to the principle of non-discrimination a ship must not be boarded and searched merely because it is sailing under a certain flag or carrying cargoes to, from or on behalf of a certain state if there is no concrete reason to suspect that it is actually used for illicit trafficking in WMD or for terrorist activities.74 Such far-reaching interference with the freedom of navigation must be authorized by the Security Council. A Council mandate under Chapter VII of the Charter could also cover, for example, the enforcement of a naval blockade against certain states “of proliferation concern” or the policing of certain shipping routes which are typically used by proliferators or terrorists.

73 Statement of Interdiction Principles (note 66), para. 1: “States or non-state actors of proliferation concern” generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (a) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (b) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials. 74 Art. 24 (1) (b) UNCLOS expressly prohibits discriminatory measures by the coastal state in its territorial sea against foreign ships. Art. 87 stipulates that the high seas are open to all states.

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E. Concluding Remarks The threat of terrorists obtaining control over WMD is inextricably linked to state possession of such weapons. Therefore, to combat WMD terrorism starts with strengthening the existing multilateral non-proliferation, arms control and disarmament regimes. Since these regimes are designed to contain the spread of WMD at the interstate-level, it is evident, however, that additional and complementary approaches must be developed in order to target the proliferation by nonstate actors. The A. Q. Khan case shows that individuals, organized groups and corporate entities collaborating in transnational networks have come to play a central role especially in nuclear proliferation. Such networks obviously possess the potential to clandestinely supply states and terrorist organizations with relevant material, components and technological know-how necessary for the production of WMD.75 Adjusting international and national export controls to capture such alternative chains of supply is, therefore, of paramount importance. From a law enforcement perspective it is also vital to have effective criminal laws in place to prosecute persons participating in proliferation activities. Moreover, in order to deny terrorists access to WMD, states must develop capacities for securing their arsenals and equipment against theft and other unauthorized diversion. This endeavor should not only be concentrated on uranium and plutonium but also on radiological sources which may be used for dirty bombs. Another highly critical issue, which still seems to be under-addressed, is the rapid development of bio-technology making it extremely difficult to contain the production and spread of hazardous biological agents. In his report of 2005 former UN Secretary-General Kofi Annan made an important point in stating that “[p]reventing bioterrorism requires innovative solutions specific to the nature of the threat. Biotechnology is not like nuclear technology. Soon, tens of thousands of laboratories worldwide will be operating in a multi-billion-dollar industry. Even students working in small laboratories will be able to carry out gene manipulation. The approach to fighting the abuse of biotechnology for terrorist purposes will have more in common with measures against cybercrime than with the work to control nuclear proliferation.”76 Thus, more attention should be paid to regulating access to biological research activities, as well as to enhancing the awareness and vigilance of the private biotech sector.77 75 Monika Heupel, Das A.Q.-Khan-Netzwerk. Transnationale Proliferationsnetzwerke als Herausforderung für die internationale Nichtverbreitungspolitik, SWP-Studie 2008/S 14. 76 Uniting Against Terrorism (note 13), para. 54. 77 On questions of regulation see Barry Kellman, Regulation of Biological Research in the Terrorism Era, Health Matrix: Journal of Law-Medicine 13 (2003), 159–180.

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In cases in which other preventive measures have proven to be ineffective to counter the proliferation of WMD by and to non-state actors, the use of force may be a last resort to prevent terrorists from actually attaining and exercising control over these weapons. Most intrusive and controversial are extraterritorial military operations against proliferators and terrorists. Whenever such operations would affect the sovereign rights of other states or the general prohibition on the use of force under Article 2 (4) of the UN Charter they must be conducted on the basis of a Security Council mandate or in accordance with the right of individual or collective self-defense.78 The scope of application of this right, especially with regard to its time limits, is not only subject to diverging interpretations among legal scholars, but has also led to fundamental divisions between political decision-makers. This controversy is essential to understanding how national governments define the role and importance of the Security Council in counterproliferation matters. The more extensively the right of self-defense is interpreted by a particular state, the less likely this state will be to call on the Security Council for a special mandate in situations where it feels compelled to act quickly and decisively in order to defend itself against a perceived threat. This is illustrated first and foremost by the US National Security Strategy of 2006, which argues: “It is an enduring American principle that this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. (…) When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption.”79 Whereas the EU Strategy against the proliferation of WMD expressly claims that the UN Security Council “should play a central role” if the use of force is to be envisioned as 78 For a closer analysis of the legality of the use of force as a means of combating terrorism see Jost Delbrück, The Fight Against Global Terrorism: Self-Defense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the “War Against Terrorism,” German Yearbook of International Law 44 (2001), 9–24; Rainer Grote, Between Crime Prevention and the Laws of War: Are the Traditional Categories of International Law Adequate for Assessing the Use of Force against International Terrorism?, in: Walter et al. (note 40), 951–986; Christian Tomuschat, Der 11. September 2001 und seine rechtlichen Konsequenzen, Europäische Grundrechte-Zeitschrift 28 (2001), 535–545. 79 The National Security Strategy (note 8), 18 et seq.

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a last resort, the US counterproliferation strategy does not accord any function to the Council in this field. Taking into account the reluctance of the US to formally activate the mechanism of collective security in these matters as well as any broader political dissent concerning the use of force within the Security Council membership, it is questionable whether the Council will assume a more active and steady role in authorizing robust counterproliferation measures in the future.

Conventional Disarmament – Nothing New on the Geneva Front? By Knut Dörmann1

A. Scope This contribution deals with restrictions and prohibitions of conventional weapons. When talking about restrictions and prohibitions on the use of weapons, we find ourselves at the crossroads of disarmament and international humanitarian law.2 The main focus will be on the Convention on Prohibitions or Restrictions on 1

The author is Head of the Legal Division, International Committee of the Red Cross (ICRC). The views expressed, however, are those of the author and, unless specifically indicated, do not necessarily reflect those of the ICRC. Special thanks go to Peter Herby, Louis Maresca, Eve La Haye, Nathalie Weizmann and Katja Schöberl, all members of the ICRC Legal Division, for their help and input. 2 The close relationship between international humanitarian law and disarmament became apparent in the course of the negotiations leading to the two 1977 Additional Protocols to the four Geneva Conventions of 1949. An ad hoc Committee on Conventional Weapons was set up in the first session of the Conférence diplomatique sur la réaffirmation et le développement du droit international humanitaire applicable dans les conflits armés (CDDH) in February 1974 in order to consider the prohibition or restriction of the use of conventional weapons which may cause “excessive injury” or have “indiscriminate effects.” A working paper which was presented at this session proposed restrictions and prohibitions on incendiary weapons, anti-personnel fragmentation weapons, flechettes, small caliber bullets and anti-personnel landmines. However, no agreement could be reached on the types of weapons, the nature of the prohibition and the appropriate forum for such negotiations as it was argued that any such prohibitions should be negotiated in the UN Conference of the Committee on Disarmament rather than in the CDDH. At its final session, the CDDH agreed to adopt a resolution expressing the wish that the weapons issues should be dealt with within the framework of the United Nations. Resolution 22 of the CDDH thus recommended that a Conference of Governments should be convened “with a view to reaching: (a) agreements on prohibitions or restrictions on the use of specific conventional weapons […].” In 1979 and 1980, two sessions of a United Nations Conference were held, which led to the adoption of the Convention of Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to

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the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Convention on Certain Conventional Weapons or CCW).3 Since 1980, work on restrictions and prohibitions of conventional weapons has happened essentially in the framework of this Convention. The Convention and its annexed Protocols contain elements of disarmament law (e.g. certain transfer prohibitions), most of their content is, however, based on international humanitarian law, in particular on the rules stemming from the principle of distinction and the prohibition to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. The first part of this contribution will cover key developments since the adoption of CCW. This includes a very brief summary of the initial work in 1980 and will then the focus more extensively on the work that has been accomplished in the last 12 years, highlighting the achievements, the failures and the unfinished business. Although they have not been negotiated in Geneva, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention)4 and the Convention on Cluster Munitions (Cluster Munitions Convention)5 will also be addressed, as these Conventions deal with weapons that have been or are being discussed in the CCW context. In the last part, the prospects of an Arms Trade Treaty will be discussed.

B. Achievements in the Context of the Convention on Certain Conventional Weapons The Convention on Certain Conventional Weapons is comprised of a framework instrument and five individual protocols that regulate specific categories of

Have Indiscriminate Effects, Robert J. Mathews, The 1980 Convention on Certain Conventional Weapons: A useful framework despite earlier disappointments, International Review of the Red Cross (IRRC) 83 (2001), 991–1012 (994 et seq.). 3 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, United Nations Treaty Series (UNTS), vol. 1342, 162, adopted 10 October 1980 and entered into force 2 December 1983. 4 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, UNTS, vol. 2056, 241, adopted 18 September 1997 and entered into force 1 March 1999. 5 Convention on Cluster Munitions, available at http://www.clustermunitionsdublin.ie/ pdf/ENGLISHfinaltext.pdf, adopted 30 May 2008.

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weapons. Along with the Geneva Conventions of 19496 and their Additional Protocols of 1977 (AP I and II),7 the Convention is one of the principal instruments of international humanitarian law. Negotiated under the auspices of the United Nations in 1979 and 1980, CCW builds upon long-established customary rules regulating the conduct of hostilities. These include: (1) the requirement that a distinction be made at all times between civilians and combatants, as well as between civilian objects and military objectives;8 and (2) the prohibition of the use of weapons which inflict excessive injury or suffering on combatants.9 While these general principles apply to all weapons used in armed conflict, the Convention imposes specific prohibitions or restrictions on the use of conventional weapons which have caused widespread concern. The Convention and its Protocols thus provide clarification as to the application of the general rules on the conduct of hostilities to certain specific weapons and supplement these general rules. When adopted in 1980, the Convention contained three Protocols: Protocol I prohibiting the use of weapons that employ fragments not detectable in the human

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Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), UNTS, vol. 75, 31, adopted 12 August 1949 and entered into force 21 October 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), UNTS, vol. 75, 85, adopted 12 August 1949 and entered into force 21 October 1950; Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III), UNTS, vol. 75, 135, adopted 12 August 1949 and entered into force 21 October 1950; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), UNTS, vol. 75, 287, adopted 12 August 1949 and entered into force October 21, 1950. 7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), UNTS, vol. 1125, 3, adopted 8 June 1977 and entered into force 7 December 1978; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), UNTS, vol. 1125, 609, adopted 8 June 1977 and entered into force 7 December 1978. 8 Art. 48 AP I reads: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives,” see also Arts. 51, 52 and 57 AP I. 9 Art. 35 (2) AP I.

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body by x-ray;10 Protocol II regulating the use of landmines, booby-traps and similar devices;11 and Protocol III limiting the use of incendiary weapons.12 The Convention, with its three Protocols, was the first international humanitarian law treaty regulating conventional weapons since the early 20th century. The Convention and its Protocols were a very modest achievement. First, they only applied to international armed conflicts. Second, the substantive prohibitions and limitations went hardly beyond what can be derived from the general rules of international humanitarian law. Certain weapons of concern at the time had not been included in the Convention’s framework at all, for example fragmentation weapons, flechettes and small caliber bullets. Lastly, the Convention did not contain compliance-monitoring provisions. Critics of the Convention concluded that military considerations had been given much greater weight in the negotiations than relevant humanitarian concerns.13 In recent years, states have added new protocols and amendments that expand and strengthen the Convention. During the First Review Conference held in 1995 (Vienna) and 1996 (Geneva), states parties adopted Protocol IV14 prohibiting the use and transfer of blinding laser weapons and an amended Protocol II15 regulating the use of landmines, booby-traps and other devices.

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Protocol on Non-Detectable Fragments (Protocol I), UNTS, vol. 1342, 168, adopted 10 October 1980 and entered into force 2 December 1983. 11 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), UNTS, vol. 1342, 168, adopted 10 October 1980 and entered into force 2 December 1983. 12 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), UNTS, vol. 1342, 171, adopted 10 October 1980 and entered into force 2 December 1983. 13 See for example Robert J. Matthews, The Second Review Conference of the 1980 Convention on Certain Conventional Weapons, Yearbook of International Humanitarian Law, 4 (2001), 406–418 (415); Knut Dörmann, Völkerrechtliche Probleme des Landmineneinsatzes – Weiterentwicklung des geltenden Vertragsrechts durch das geänderte Minenprotokoll vom 3. Mai 1996 zum UN-Waffenübereinkommen von 1980, Bochumer Schriften zur Friedenssicherung und zum humanitären Völkerrecht, Band 47, 2002, 350 et seq.; Adam Roberts/Richard Guelff, Documents on the Laws of War, 3rd ed. 2000, 515 et seq. 14 Protocol on Blinding Laser Weapons (Protocol IV), available at http://www.icrc.org/ ihl.nsf/FULL/570?OpenDocument, adopted 13 October 1995 and entered into force 30 July 1998. 15 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended Protocol II), available at http://www.icrc. org/ihl.nsf/FULL/575?OpenDocument, adopted 3 May 1996 and entered into force 3 December 1998.

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The Protocol prohibiting blinding laser weapons was, without a doubt, a landmark in international humanitarian law/arms control history because the prohibition was negotiated before the weapon had been deployed in battle.16 It prohibits the use of laser weapons specifically designed to cause permanent blindness and the transfer of such weapons to any state or non-state entity (Art. 1). States parties also strengthened the rules on landmines, booby-traps and other devices by adopting an amended version of Protocol II in response to the increasing human toll taken by these weapons, in particular in non-international armed conflicts. The reality of armed conflicts had demonstrated the weakness of the initial work in 1980 and called for more resolute action.17 A number of useful improvements were made to Protocol II.18 Among others, the scope of application was extended to cover non-international armed conflicts (Art. 1 (2)); general restrictions on the use of anti-personnel landmines were strengthened (Art. 3); non-detectable anti-personnel landmines were banned (Art. 4), as well as mines with anti-sensing devices, i.e. mechanisms or devices specifically designed to detonate the munition through the presence of commonly available mine detectors as a result of their magnetic or other non-contact influence during normal use in detection operations (Art. 3 (5)). Slightly stronger restrictions on the use of remotely-delivered anti-personnel mines, including a ban on the remote-delivery of long-lived anti-personnel mines, i.e. those mines which are not in compliance with the provisions on self-destruction and self-deactivation, were also added (Art. 6). Finally, the Protocol also contains, for the first time, a number of transfer prohibitions: mines prohibited by the Protocol may not be transferred at all, all other mines may not be transferred to an entity other than a state, and they may not be transferred to states that are not bound by the Protocol, unless the recipient state agrees to apply it (Art. 8). The situation with regard to compliance obligations for Protocol II was improved to some extent (Art. 14). The amended Protocol now contains an obligation to take all appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict and contrary to the provisions of this protocol, wilfully kill or cause serious injury to civilians, and to bring such persons to justice. States also have an obligation to issue relevant military instructions and operating procedures to their armed forces and to train them accordingly.

16 Louise Doswald-Beck, New Protocol on Blinding Laser Weapons, IRRC 78 (1996), 272–299 (296). 17 Dörmann (note 13), 360. 18 For a complete assessment see ibid., 505 et seq.

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The failure of the Review Conference to agree on a total prohibition of antipersonnel landmines prompted a group of like-minded states favoring a total ban to start negotiations outside the consensus based setting of the Conventional Weapons Convention.19 As a consequence, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, or “Ottawa Convention,”20 was adopted in 1997. The treaty, which is largely based on international humanitarian law principles, also contains elements that are usually found in disarmament treaties, i.e. in addition to the prohibition under any circumstances to use anti-personnel mines, the Convention also prohibits the development, production, stockpiling, retention or transfer of antipersonnel mines to anyone, directly or indirectly (Art. 1). The Ottawa Convention counts 156 states parties today, the Amended Protocol II only 92.21 The Ottawa Convention provides a comprehensive framework through its prohibition on all uses of anti-personnel mines, its obligation to destroy existing stockpiles and to clear mine-affected areas, and its provisions on victim assistance. In this respect, it is a unique instrument which, for the first time, bans a weapon in widespread use. The implementation of the Ottawa Convention has been an important success in the past 11 years. First, there has been a major decrease in the use of anti-personnel mines around the globe and, even if forty countries remain outside of the Ottawa Convention, the use of this weapon has been truly stigmatized.22 Secondly, there has been a significant decrease in the production of anti-personnel mines23 and the international trade in these weapons has virtually ceased, as even many states that are not parties to the Convention, like China, India, Pakistan, Russia and the USA, have export moratoria in place.24 Thirdly, more than 40 million 19

Ibid., 511. See note 4. 21 See ICRC Treaty Database on International Humanitarian Law, available at http:// www.icrc.org/ihl.nsf. 22 For an analysis of the latest use of anti-personnel landmines by states and non-state armed groups see International Campaign to Ban Landmines (ICBL), Landmine Monitor Report 2008, available at http://www.icbl.org/lm/2008/. 23 34 of 50 states that previously manufactured anti-personnel landmines are now party to the Ottawa Convention and have consequently stopped their production. Geneva International Centre for Humanitarian Demining (GICHD), The Ninth Meeting of the States Parties, 24–28 November 2008, available at http://www.apminebanconvention.org/meetings-of-thestates-parties/9msp/. 24 For more information on national policies of non-Ottawa states, see for example the homepage of the US Office of Weapons Removal and Abatement for an overview of the current US landmine policy, available at http://www.state.gov/t/pm/wra/c11735.htm. 20

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stockpiled anti-personnel mines have been destroyed by states parties.25 Perhaps, the most significant achievement of the Ottawa Convention is its success in reducing death and injury on the ground. The ICRC and the National Red Cross and Red Crescent Societies have observed that the annual number of new mine victims has fallen dramatically in countries where the Convention’s norms are being fully applied, in some countries, e.g. in Croatia, Cambodia and Bosnia-Herzegovina, by more than 60 % as compared to levels in the early and mid-1990s.26 Yet, a number of major challenges remain. One of the most important is the fulfilment of mine clearance obligations under Art. 5 of the Convention, which requires each state party to completely clear all areas containing anti-personnel mines under its jurisdiction or control within 10 years after the entry into force of the Convention for that state party. The Ninth Meeting of the States Parties in November 2008 was the first meeting in which states parties’ requests for extensions of Art. 5 deadlines were considered and thus particularly important for the successful implementation of the Convention. 15 out of 19 states parties with deadlines in 2009 submitted extension requests27 – which were all granted.28 Compared to the Ottawa Convention, it is not a simple task to assess the effectiveness of the Amended Protocol II. The extent of its contribution to alleviating the suffering caused by the use of landmines is difficult to assess.29 After all, the level of ratification of Amended Protocol II remains low, especially when compared to the Ottawa Convention. The obligations are comparatively weak and sometimes difficult to implement and monitor. It should, however, be stressed that certain important states not party to the Ottawa Convention, such as the United States, have contributed significantly to demining activities making a true difference in the daily life of mine-affected communities in many countries. A first assessment with regard to the phase-out deadlines for non-detectable and non-self-destructing/self-deactivating anti-personnel landmines can be made. Under 25

GICHD, The Ninth Meeting of the States Parties (note 23). Peter Herby/Eve La Haye, How Does It Stack Up? The Anti-Personnel Mine Ban Convention at 10, Arms Control Today, December 2007, available at http://www. armscontrol.org/act/2007_12/Herby. 27 Bosnia and Herzegovina, Chad, Croatia, Denmark, Ecuador, Jordan, Mozambique, Nicaragua, Peru, Senegal, Thailand, The United Kingdom, Venezuela, Yemen and Zimbabwe. 28 For more information on Art. 5 extension requests see the homepage of GICHD, available at http://www.apminebanconvention.org/background-status-of-the-convention/ clearing-mined-areas/article-5-extensions/overview/. 29 Although it may be reasonable to conclude that the adherence of producers of antipersonnel landmines to the transfer restrictions of Amended Protocol II is one factor in the almost complete halt in trade of anti-personnel landmines. 26

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the Amended Protocol II, states were allowed to defer compliance from the obligations on detectability and self-destruction/self-deactivation for nine years.30 As clarified by the Third Review Conference, the deadline began with the entry into force of the Protocol and expired on 3 December 2007.31 The Ninth Annual Conference of states parties to Amended Protocol II recalled in November 2007 that the permitted deferral period would expire by the end of the year and welcomed the declarations made by Belarus, China and Latvia, whereby the permitted deferral had ceased to have effect for these countries.32 The issue was taken up again during the Tenth Annual Conference in November 2008 in the course of which Pakistan declared that it had fulfilled its obligations during the transition period and that it had initiated the process of formally withdrawing its deferral declaration. Thus, of the six states that submitted a deferral declaration at the time of ratification,33 four have by now indicated that they have met their obligations. To conclude, the value of the Ottawa Convention is uncontested, even though several significant producers, users and exporters of anti-personnel landmines have not joined it. This is in particular due to the clarity of its obligations and the impact the Convention had on those states in terms of their national policies. The role of the Amended Protocol is more difficult to assess. It can certainly take credit for having regulated the use and transfer of such mines for those states which have decided that their security interests will not at present allow them to ratify the Ottawa Convention and of those weapons that are not covered by the Ottawa Convention, such as anti-vehicle mines, booby traps and other devices. At the Second Review Conference of the Convention on Certain Conventional Weapons, which took place in Geneva in 2001, states parties extended the Convention’s scope of application.34 As outlined above, the Convention originally applied 30

Art. 2 (c) of the Technical Annex to the Amended Protocol II provides that a state party which is not able to employ mines produced before 1 January 1997, which can be detected by commonly-available technical mine detection equipment, may defer compliance with this obligation for a period of maximum nine years from the entry into force of the Protocol. Art. 3 (c) of the Annex contains a similar provision with respect to the selfdestruction and self-deactivation of mines. 31 Third Review Conference of the High Contracting Parties 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, Final Declaration, CCW/CONF.III/11 (Part II). 32 Ninth Annual Conference of States Parties to Amended Protocol II, Final Document, 12 November 2007, CCW/AP.II/CONF.9/2, para. 17. 33 China, Pakistan, Russia, Ukraine, Belarus and Latvia. 34 Second Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be

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only to situations of international armed conflict. Recognizing that most conflicts today are non-international in character, states parties agreed to amend the Convention so that its existing Protocols would also apply in situations of non-international armed conflict. While the scope of application of Protocol II had already been extended to such situations through the amendments made in 1996, the second review conference similarly broadened the scope of application of Protocols I, III and IV. This extension of scope was clearly an important achievement. The Protocol on Explosive Remnants of War (Protocol V)35 is the most recent addition to the Convention.36 It was adopted by the states parties in November 2003 after two years of work by government experts. The Protocol is the first multilateral agreement to deal with the problem of unexploded and abandoned ordnance. It applies to all conventional munitions containing explosives, with the exception of mines, booby traps and other devices as defined in Amended Protocol II. Adherence to and implementation of this Protocol could significantly reduce the number of civilians killed and injured by explosive remnants of war (ERW) during and after conflicts. It contains clearance obligations, obligations on marking, fencing and monitoring of contaminated areas, as well as rules on technical and financial assistance to facilitate removal. The Protocol on Explosive Remnants of War is the first international treaty to deal with all explosive munitions used by armed forces. It strengthens the law in areas where no specific rules had previously existed and provides an important legal regime to address one of the principal dangers faced by civilian populations in the aftermath of armed conflict. Along with Amended Protocol II to the CCW, the Ottawa Convention and the Cluster Munitions Convention, international humanitarian law now contains a series of complementary treaties laying down a comprehensive set of rules to reduce the problems caused by all mines and explosive remnants of war. These four instruments also reflect an extension of international humanitarian law into the post-conflict setting.37

Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Amendment of Art. 1 of the Conventional Weapons Convention, Final Declaration, CCW/CONF.II/2, adopted 21 December 2001 and entered into force 18 May 2004. 35 Protocol on Explosive Remnants of War (Protocol V), available at http://www.icrc. org/ihl.nsf/FULL/610?OpenDocument, adopted 28 November 2003 and entered into force 12 November 2006. 36 For an in-depth analysis see Louis Maresca, A new protocol on explosive remnants of war: The history and negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons, IRRC 86 (2004) 815–835. 37 Ibid., 833.

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These developments demonstrate that the Convention on Certain Conventional Weapons can be a dynamic instrument capable of responding to advances in weapons technology and taking into account developments in the nature and conduct of armed conflict. The Convention has proven on various occasions to be an important framework within which new humanitarian concerns regarding conventional weapons can be dealt with. However, it has also suffered notable setbacks.

C. Failed or Unfinished Business of the Conventional Weapons Convention and Responses Outside that Context I. Anti-Vehicle Mines The ICRC and others have documented the serious impact of anti-vehicle mines on civilian populations and humanitarian assistance operations.38 ICRC delegates have witnessed the tragic results of anti-vehicle mine use when civilian vehicles encounter such weapons. In many contexts, efforts to deliver humanitarian assistance are hampered due to the presence of anti-vehicle mines, denying civilian populations the assistance they have a right to expect under the Geneva Conventions. Anti-vehicle mines, or mines other than anti-personnel mines (MOTAPM) as they are now more commonly called in the CCW context, were the subject of extensive discussion between 2002 and 2006. Although Amended Protocol II contains some restrictions on anti-vehicle mines,39 these restrictions were widely seen as not being sufficient to address the humanitarian concerns of their use. After the Second Review Conference in 2001, discussions started within the CCW’s Group of Governmental Experts with a view to strengthening the rules on anti-vehicle mines. Proponents suggested the drafting of a new protocol requiring that all anti-vehicle mines be detectable and that remotely deliverable models be self-destructing and self-deactivating. Their proposal came to be known as the “31 nations-proposal.”40

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See for example ICRC, Anti-vehicle mines: effects on humanitarian assistance and civilian populations, Report to the Group of Governmental Experts of the States Parties 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, 15 July 2002, CCW/GGE/II/WP.9. 39 See in particular Art. 3 Amended Protocol II. 40 The proposal was originally submitted by the United States and Denmark, but later supported by a number of European and south-east Asian states, as well as Canada and Australia.

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In the end, no agreement on finalizing a new protocol on MOTAPM was reached.41 Despite five years of work and the efforts of many states, in particular of the United States and EU member states, there was lack of agreement to start formal negotiations. Some countries did not see the need for new rules. As a result, a new legally binding treaty on anti-vehicle mines is unlikely to be achieved in the foreseeable future. After the failure, 19 states made a common “Declaration on Anti-Vehicle Mines,” in which they committed themselves unilaterally to certain principles.42 The Declaration does, however, not go as far as the initial “31 nations-proposal” as it only prohibits the use of certain types of anti-vehicle mines outside of a perimeter-marked area, and not regardless of their location.43 Throughout the discussions, the ICRC held the view that a new MOTAPM Protocol could strengthen current rules by requiring such weapons to be detectable and short-lived.44 But to be effective it must be legally binding, represent significant progress towards the rules on MOTAPM contained in Amended Protocol II and be clear enough to be readily implemented so as to have an impact on solving the problem on the ground.

41 See for example Detlev Justen, Wie weiter mit den Verhandlungen zu Antifahrzeugminen?, SWP-Aktuell 61, Dezember 2006, available at http://www.swp-berlin.org/common/ get_document.php?asset_id=3546, 1. 42 Literally, they declared that “each of our governments intends to take necessary steps to adopt the following practices as a matter of national policy: (i) not to use any antivehicle mine outside of a perimeter-marked area if that mine is not detectable […]; (ii) not to use any anti-vehicle mine outside of a perimeter-marked area that does not incorporate a self-destruction or self-neutralization mechanism that is designed and constructed so that no more than ten percent of activated mines fails to self-destruct within forty-five days after arming […]; (iii) to prevent the transfer of any anti-vehicle mine (a) to any recipient other than a State or State agency authorized to receive it; (b) if it does not meet the detectability and active life standards set out in this declaration, except for the purpose of destruction or for development of and training in mine detection, mine clearance, or mine destruction techniques; (c) to any State that has not stated the same policy that is set out in this declaration; and (d) without an end-user certificate.” Declaration on Anti-Vehicle Mines, presented by Australia, Canada, Croatia, Denmark, Estonia, Lithuania, the Netherlands, New Zealand, Norway, Slovenia and the United States of America, 16 November 2006, CCW/CONF.III/WP.16. 43 Justen (note 41), 3. 44 See for example ICRC, Statement to the Third Review Conference of the Convention on Certain Conventional Weapons, Statement by Philip Spoerri, 6 November 2007, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/conventional-weapons-statement071106.

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II. Cluster Munitions 1. The Problem The necessity to specifically regulate the use of cluster munitions has been debated for decades. The use of these weapons in conflicts over the last 40 years has shown that a large proportion of these weapons are inaccurate and unreliable.45 The impact of unexploded submunitions on civilians can be seen in places such as Laos, Afghanistan, Ethiopia, Serbia, Iraq, and most recently Lebanon. While mainly used by military forces, reports also indicate that armed non-state actors now have access to these weapons46 – raising concerns about the implications for their proliferation and highlighting the increasing costs of inaction. The concerns arise from the impact that cluster munitions have on civilian populations. Cluster munitions have deadly and long-term consequences for civilians both during conflicts when they function as designed and after conflicts when their submunitions fail to explode as intended and become explosive remnants of war. Failure rates are often between 15 and 40 percent of all munitions used.47 Since cluster munitions spread enormous numbers of explosive submunitions over very large areas, there is a serious risk of civilian casualties where military objectives and civilians are co-located in a target area. The last 40 years provide clear evidence of the impact of these weapons on civilian populations and war affected countries. Few conventional weapons have such characteristics. No international humanitarian law treaty had provided for specific rules on cluster munitions. Like other weapons used in armed conflict, however, their use is regulated by the general rules of international humanitarian law that govern the conduct of hostilities. The history and effects of cluster munition use in recent decades raise important questions about how rigorously fundamental rules of

45 For an overview of the use and impact of cluster munitions see for example Simon Conway, Cluster Munitions: Historical Overview of use and human impacts, Statement at ICRC Expert Meeting on Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions, Montreux, 18–20 April 2007, available at http://www.icrc.org/Web/Eng/ siteeng0.nsf/html/p0915. 46 See for example Handicap International, Fatal Footprint: The Global Human Impact of Cluster Munitions, November 2006, available at http://www.handicap-international.org. uk//files/Fatal%20Footprint%20FINAL.pdf. 47 See for example Colin King, Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study, ICRC, 2002.

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international humanitarian law are being applied and, in our view, demonstrate the need for new rules.48 Firstly, doubts arise as to whether cluster munitions can be used in populated areas in accordance with the rule of distinction49 and the prohibition of indiscriminate attacks.50 These rules are intended to ensure that attacks are directed at specific military objectives and are not of a nature to strike military objects and civilians or civilian objects without distinction. The fact that most cluster munitions are designed to disperse large numbers of submunitions (up to 650 in some models)51 over very wide areas and that the vast majority of submunitions are free-falling raises serious questions as to whether such weapons can be used in populated areas in accordance with these rules. The wide area effects of these weapons and the large number of unguided submunitions released would appear to make it difficult, if not impossible, to distinguish between military objectives and civilians in a populated target area. Can these submunitions really be aimed at a specific military target, in particular in such an area? Secondly, concerns also arise under the rule of proportionality.52 It is clear that implementing this rule must include an evaluation of the foreseeable incidental consequences for civilians during the attack (immediate death and injury) and consideration of the foreseeable effects of submunitions that become explosive remnants of war. The principal question in this regard is: what is foreseeable? Is it credible to argue today that the short, mid or long-term consequences of cluster munition contamination are unforeseeable, particularly when these weapons are used in or near populated areas? As is known from past conflicts, civilians present in a target area will predictably need to gather food and water, seek medical care, and conduct other daily activities which put them at risk from unexploded submunitions. And it is foreseeable that clearance will take months or years, even in the rare cases where adequate resources are available.

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ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. Document prepared by the International Committee of the Red Cross for the 30th International Conference of the Red Cross and Red Crescent, Geneva, November 2007, 30IC/07/8.4. 49 Art. 48 AP I. 50 Art. 51 (4) AP I. 51 See for example Landmine Action, Foreseeable harm. The use and impact of cluster munitions in Lebanon 2006, October 2006. 52 Art. 51 (5) b) AP I.

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Thirdly, feasible precautions need to be taken.53 The main issue here is how the rule on feasible precautions in attack is implemented in light of the known characteristics and foreseeable effects of cluster munitions. Implementing the rule would require, for example, that a party considers the accuracy or inaccuracy of the cluster munition and its targeting system, the size of the dispersal pattern, the amount of ERW likely to occur, the presence of civilians and their proximity to military objectives, and the possible use of alternative munitions and tactics. It could also require that submunitions are not used in populated areas and that alternative weapons are considered. Yet, given this range of precautions which can and should be taken, why do high levels of civilian casualties from cluster munitions remain an ongoing and predictable feature of virtually all conflicts in which they are used? Such a consistent history of high human costs may raise questions on the extent to which the various aspects of this rule are being applied to cluster munitions. An important step to reduce the post-conflict impact of cluster submunitions and other explosive remnants of war was taken in 2003 when the Protocol on Explosive Remnants of War was adopted. The Protocol provides an important framework for reducing the post-conflict dangers caused by all forms of unexploded or abandoned ordnance. However, the Protocol does not contain legally-binding measures to prevent the steady increase in explosive remnants of war. The scale of the problem is growing far more rapidly than clearance operations can remedy it. One of the greatest contributors to this burden is cluster munitions. The Protocol also does not address the high risk of indiscriminate effects from a cluster munitions attack when the submunitions do detonate as intended, particularly if the attack occurs in a populated area. As a consequence, the ICRC took the view that the specific characteristics of cluster munitions, the unfortunate history of their use and their severe and longlasting effects on victims, communities, and even whole societies fully justify strong action at both the national and international level.54 In light of the specific characteristics of these weapons and their history of death, injury and suffering, the ICRC supported calls for the development of a new IHL treaty which would 53

Art. 57 AP I. See for example ICRC, International Humanitarian Law (note 48); ICRC, The need for urgent international action on cluster munitions. Statement by Philip Spoerri, 6 November 2006, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/cluster-munitionstatement-061106; ICRC, The ICRC’s position on cluster munitions and the need for urgent action. Statement by Jakob Kellenberger, 25 October 2007, available at http://www. icrc.org/Web/Eng/siteeng0.nsf/html/cluster-munitions-statement-251007. 54

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(1) prohibit the use and transfer of inaccurate and unreliable cluster munitions, (2) require the elimination of current stocks of these weapons and (3) provide for victim assistance, clearance of cluster munitions and activities to minimize the impact of these weapons on civilian populations.55

2. The Reaction of the International Community – Two Codification Initiatives Similar to the anti-personnel mines context, two codification initiatives started. As described above, in the case of anti-personnel mines, work was first finished within the CCW context and was then succeeded by the Ottawa process, led by those states that believed that Amended Protocol II was not an appropriate answer to the humanitarian problem. In the case of cluster munitions, however, the two codification initiatives run essentially in parallel. At the time of writing, the Cluster Munitions Convention had been adopted on 30 May 2008 in Dublin and signed at a signing ceremony in Oslo on 3 December 2008. Discussions in the context of the CCW were not concluded and further negotiations were scheduled for 2009. How did it all unfold thus far? Prior to November 2006, efforts to strengthen the international regulation of cluster munitions had made little progress. The massive use of these weapons in southern Lebanon and their reported use by Hezbollah against northern Israel during the hostilities in July and August 200656 highlighted, however, the need for urgent action. In response, 25 countries called for a legally binding instrument on cluster munitions at the 2006 CCW Review Conference.57 However, most major powers were opposed to starting negotiations at that time. The CCW member states thus only agreed to continue to discuss cluster munitions in the Group of 55

ICRC, International Humanitarian Law (note 48). See for example Human Rights Watch, Lebanon/Israel: Hezbollah Hit Israel with Cluster Munitions During Conflict, 18 October 2006, available at http://www.hrw.org/en/ news/2006/10/18/lebanonisrael-hezbollah-hit-israel-cluster-munitions-during-conflict. 57 See Declaration on Cluster Munitions, presented by Austria, Belgium, BosniaHerzegovina, Croatia, Costa Rica, Czech Republic, Denmark, Germany, The Holy See, Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, Sweden and Switzerland, CCW/ CONF.III/11 (Part III). In this declaration, the above mentioned states called for an agreement that should inter alia: “(a) prohibit the use of cluster munitions within concentrations of civilians; (b) prohibit the development, production, stockpiling, transfer and use of cluster munitions that pose serious humanitarian hazards because they are for example unreliable and/or inaccurate; (c) assure the destruction of stockpiles of cluster munitions that pose serious humanitarian hazards because they are for example unreliable and/or inaccurate, and in this context establish forms for cooperation and assistance.” 56

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Governmental Experts.58 The Group met in June 2007, but was unable to reach consensus on the way forward. Although several military powers have indicated that they were now willing to negotiate an instrument within the CCW, others remained opposed. As the Group was unable to reach agreement, it recommended that the meeting of states parties in November 2007 should decide on how to best address the humanitarian impact of cluster munitions. The Meeting of the High Contracting Parties to the Convention then decided: The Group of Governmental Experts (GGE) will negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations. The GGE should make every effort to negotiate this proposal as rapidly as possible and report on the progress made to the next Meeting of the High Contracting Parties in November 2008.59

There was concern at least since 2006 that the CCW would be unlikely to produce the strong rules that many feel are necessary to address the cluster munitions problem. It was pointed out that the Group of Governmental Experts had struggled for nearly five years to develop new rules on MOTAPM and was unsuccessful. Despite years of work on the legal, technical, and military aspects of MOTAPM regulation, the group had been unable to agree on the start of formal negotiations on a new MOTAPM protocol. In the current political context, the CCW seems unable to take strong action to restrict the use and design of those weapons that are considered to have a significant military value by some governments. There was fear that proposals on cluster munitions would suffer a similar fate if left on the CCW agenda. The ambiguous language of the November 2007 mandate for work on cluster munitions only served to increase the scepticism about achieving effective results. On the other hand, there was concern that a process outside the CCW framework might not include some of the important military powers that are party to the CCW. There is clearly a value in having the most significant users and producers of cluster munitions involved in efforts to address the humanitarian problems caused by these weapons. However, as has been learned form the work on anti-personnel mines, countries with small and medium-sized armed forces can also play an important role in developing the rules of international humanitarian law and in stigmatizing a particular weapon in the international and public conscience. As many of these countries produce cluster munitions, they are an important force in the design, marketing, purchasing and trading of these weapons. Some European countries have used the weapons in recent operations and many have significant stockpiles, 58

Third Review Conference (note 31). Meeting of the High Contracting Parties 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 (3 December 2007), CCW/MSP/2007/5. 59

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which makes them potential users. The norms and standards that they apply individually or collectively can have a significant impact, particularly on armed forces which possess similar models or cluster munitions with similar characteristics. In the absence of decisive action on cluster munitions at the 2006 CCW Review Conference, the government of Norway invited governments that supported the development of new rules on cluster munitions to a meeting in Oslo in February 2007. The Final Declaration of the Conference, initially supported by 46 states, established several common goals, which include the adoption of a legally binding international instrument prohibiting “cluster munitions that cause unacceptable harm to civilians” by the end of 2008 and establishing a framework for cooperation and assistance for the care and rehabilitation of survivors, the clearance of contaminated areas, risk education, and the destruction of prohibited cluster munitions.60 The commitment to conclude an international instrument on cluster munitions by the end of 2008, which was subsequently endorsed by some 100 states, gained momentum gathering more and more states behind this humanitarian goal. It resulted in the formal adoption of the Convention on Cluster Munitions in Dublin on 30 May 2008. With more than 100 states participating, an important part of the international community showed commitment to address the suffering caused by cluster munitions as a matter of urgency. While a number of major military powers, which use and/or possess cluster munitions, did not attend, e.g. China, India, Pakistan, Russia and the United States, 57 of the participating countries (full participants and observers) use, produce, stockpile and/or are affected by the weapon. At the heart of the Convention lie comprehensive prohibitions. The new Convention not only bans the use of cluster munitions in all situations of armed conflict, but also their development, production, acquisition, stockpiling, retention, and transfer. In addition, states parties are prohibited from assisting, encouraging or inducing anyone to engage in such prohibited activities. In this respect the Convention parallels the Ottawa Convention banning anti-personnel landmines. Importantly, the Convention does not permit a state party to defer the treaty’s prohibitions for any length of time nor allow the weapon to be used in exceptional circumstances (so called “transition periods”). A key issue during the negotiations was the definition of cluster munitions. The treaty prohibits all cluster munitions which have caused the problems associated 60 Oslo Conference on Cluster Munitions, Final Declaration, 23 February 2007, available at http://www.regjeringen.no/upload/UD/Vedlegg/Oslo%20Declaration%20(final)% 2023%20February%202007.pdf.

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with these weapons over the last 40 years, i.e. all cluster munitions which the ICRC has described as being “inaccurate and unreliable.” It covers nearly all of the cluster munitions currently in the stockpiles of states. Munitions are excluded which contain less than 10 submunitions if each submunition (1) weighs more than four kilograms; (2) is designed to detect and engage a single target object; (3) is equipped with an electronic self-destruction mechanism; and (4) is equipped with an electronic self-deactivating feature. Such munitions are not considered to be cluster munitions for the purpose of the treaty (Art. 2). These weapons are excluded on the basis that they have not caused and are unlikely to cause the kinds of problems traditionally associated with cluster munitions. In order to avoid circumvention of the prohibitions mentioned above, the prohibitions also apply, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft. Under the Convention, a state party has eight years to destroy its stockpiles of cluster munitions. This deadline can be extended for an additional four years. A further extension of four years may also be granted in exceptional circumstances (Art. 3). Each state must clear its territory contaminated with unexploded submunitions within 10 years of becoming a party to the Convention. If a state is unable to do so, it may request extensions for additional periods of five years (Art. 4). Given the overwhelming scale of the problem in some countries, such as Laos, additional extensions are likely to be granted to heavily affected states. The provisions on victim assistance are particularly notable since they constitute the most far-reaching obligations in terms of victim assistance ever included in a treaty of international humanitarian law. States parties with cluster munition victims on their territory are required to provide them with medical care, rehabilitation and psychological support, and to provide for their social and economic inclusion on a non-discriminatory basis. States parties must develop and implement any necessary plans and policies to provide such assistance, and take steps to mobilize the needed resources (Art. 5). It is also worth noting that the definition of a cluster munition victim is broad. It encompasses not only those directly killed or injured but also includes their families and the communities that suffer socioeconomic and other consequences (Art. 2). One of the most difficult issues in the negotiations was the problem of “military interoperability.” A number of governments sought to limit the Convention’s prohibition on assisting anyone to engage in any activity prohibited by the Convention (Art. 1 (c)). These states were concerned that their soldiers or the state itself could be accused of violating the treaty by participating in joint military operations with countries that are not a party to the Convention and which continue to use

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cluster munitions. A satisfactory solution of this problem was fundamental for their support of the treaty. The compromise on this issue is found in Art. 21 entitled “Relations with States not party to this Convention.” This provision permits “military cooperation and operations” with states not party to the Convention and which may use, produce, stockpile or transfer cluster munitions. While the provision does, in effect, limit the scope of the prohibition on assistance in prohibited activity, its potential impact is counterbalanced, to some degree, by a requirement on states parties to discourage the use of cluster munitions in joint military operations. In addition, while joint military operations are permitted by the Convention, they must not entail the use, production, stockpiling, or transfer of cluster munitions by the state party itself. The Convention on Cluster Munitions has met, and in some areas exceeded, the goals of the ICRC. It is a strong instrument, which, if widely ratified and fully implemented, will help to end the suffering caused by cluster munitions.61 It is a fundamental step in stigmatizing these weapons. The new Convention can also be seen as a major triumph of “preventive humanitarian diplomacy.” Although the use of cluster munitions has caused extensive harm to civilians, its impact has thus far not approached the widespread consequences brought about by the use of antipersonnel mines in the late 1980s and early 1990s. However, the prohibition of cluster munitions was also motivated by a desire to prevent their proliferation to new actors and to ensure that the millions of cluster submunitions in current stockpiles are never used. While the Oslo process came to a successful conclusion, agreement on a new protocol has not yet been achieved within the CCW context. Positions among the main producing and stockpiling countries as well as between such countries and others which have been active in the Oslo process remain quite far apart. The Ninth Meeting of States Parties in 2008 therefore decided to continue negotiations in 2009. In the ICRC’s view, the outcome of the negotiations should be both effective on the ground and complementary to the Convention on Cluster Munitions, while not contradicting its provisions. A crucial test in this regard is whether a proposed result would legitimize the use of precisely those types of weapons that are now prohibited in the Convention on Cluster Munitions. Such a result, negotiated after the norms of the Cluster Munitions Convention were adopted, could adversely affect the clarity and coherence of international humanitarian law. Helpful complementary measures could be transfer prohibitions, a prohibition of the use of cluster 61 See for example ICRC, Convention on Cluster Munitions: ICRC welcomes signing of historic agreement, Statement by Jakob Kellenberger, Oslo, 3 December 2008, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/statement-cluster-munitions-031208.

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munitions in populated areas or their vicinity, and the phasing out of cluster munitions of a certain age, which are particularly likely to be unreliable.62

III. Evaluation The Convention on Certain Conventional Weapons has played a crucial role in international efforts to protect civilians from conventional weapons which may have indiscriminate effects and to spare combatants from excessively severe injuries. It is capable of providing a forum due to its construction as a framework convention and possibility of adding specific protocols, as well as its review conferences. The potential of this Convention is reflected in the achievements of states parties during the past 11 years. In this period, the Convention was extended to cover non-international armed conflicts, blinding laser weapons were prohibited, and the Protocol on Explosive Remnants of War established new rules to minimize the death, injury, and suffering caused by unexploded and abandoned ordnance. New, improved restrictions were placed on landmines, booby traps and similar devices through Amended Protocol II, which were, however, deemed to be insufficient by the currently 156 states parties to the Ottawa Convention banning anti-personnel mines. Nevertheless, the CCW also witnessed important setbacks, such as through the adoption of rules perceived as being rather weak and too difficult to apply in practice to make a real difference in humanitarian terms, as well as through the failure to address certain types of weapons. The fact that CCW negotiations are based on consensus expresses the underlying hope that the rules adopted are acceptable to and, thus, likely to be implemented by all major military powers. However, consensus also means that any single state can veto proposals and that the result is often the lowest common denominator. Furthermore, there is no guarantee that all negotiating states will later ratify the instruments adopted. While certain states clearly see the Convention on Certain Conventional Weapons as the most credible setting to deal with conventional weapons, experience has shown that alternative ways, as in the case of the Ottawa Convention banning anti-personnel landmines and the Convention on Cluster Munitions, may be very beneficial from a humanitarian perspective if a critical mass of support from relevant military powers can be obtained.

62 ICRC, ICRC reaffirms strong support for Convention on Cluster Munitions, Statement by Philip Spoerri, 3 November 2008, available at http://www.icrc.org/Web/Eng/ siteeng0.nsf/html/ccw-statement-031108.

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D. Development of an International Arms Trade Treaty Another significant normative initiative is the start of discussions on an international arms trade treaty that would cover all conventional weapons. In recent decades, states have adopted wide-ranging prohibitions and limitations on the transfer of chemical, biological and nuclear weapons, missile systems and certain components of these technologies. Yet, it is conventional weapons – assault rifles, grenades, mines, bombs, rockets and missiles – that are causing most death and injury in today’s conflicts. Until recently, however, the transfer of conventional weapons had received little attention at the global level. An NGO campaign for an international Arms Trade Treaty was launched in late 2003.63 In March 2005, the then UK Foreign Secretary Jack Straw expressed the UK’s intention to take this initiative forward.64 Due to the UK’s leadership in promoting an arms trade treaty with other states as well as an effective NGO campaign, the idea received the support of a large number of states within a short period of time. A resolution regarding the development of a global arms trade treaty was adopted by the UN General Assembly with a clear majority on 6 December 2006.65 The resolution called for the establishment of a Group of Governmental Experts in 2008 to examine the feasibility, scope, and parameters of a legally binding instrument establishing international standards for the import, export, and transfer of conventional arms.66 After having held three working sessions in 2008, the Group of Governmental Experts submitted their report to the General

63 See the website of the Control Arms Campaign, run jointly by Amnesty International, the International Action Network on Small Arms and Oxfam International, available at http://www.controlarms.org. 64 Jack Straw, Securing a Global Arms Trade Treaty, Speech at the Institute of Civil Engineers, London, 16 March 2005, available at http://www.fco.gov.uk/en/newsroom/ latest-news/?view=Speech&id=1896743. 65 See GA Res. 61/89, 6 December 2006, Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. The resolution was cosponsored by Argentina, Australia, Costa Rica, Finland, Japan, Kenya and the UK. Only the United States voted against the resolution, while 24 states – China, Russia, India, Pakistan, Israel and a number of Arab League states – abstained. 66 Pursuant to GA Res. 61/89, the Secretary General appointed a Group of Governmental Experts from the following 28 countries: Algeria, Argentina, Australia, Brazil, China, Colombia, Costa Rica, Cuba, Egypt, Finland, France, Germany, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Romania, Russian Federation, South Africa, Spain, Switzerland, Ukraine, the United Kingdom of Great Britain and Northern Ireland, and the United States.

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Assembly for consideration at its sixty-third session.67 It concludes that “further consideration of efforts within the United Nations to address the international trade in conventional arms is required on a step-by-step basis in an open and transparent manner.” The report was endorsed by the General Assembly’s First Committee which consequently decided to establish an open-ended working group to continue the experts’ work in 2009 and beyond. 68 Why is such a treaty needed and what should its key substantive elements be? The ICRC has been calling for stricter regulation of international transfers of military weapons since the late 1990s.69 Through its humanitarian work in some 80 countries worldwide, the ICRC has witnessed how the unregulated availability and widespread misuse of weapons has facilitated violations of international humanitarian law and led to a deterioration of the situation of civilians during armed conflicts. The proliferation of weapons to a range of new actors has also had direct implications. Violations of international humanitarian law are widespread in contemporary armed conflicts, with civilians often bearing the brunt of the violence. Civilians are not only caught in the cross-fire between the warring parties, they are often deliberately targeted. In a number of contexts, the security situation is deteriorating for both local and international actors providing humanitarian assistance. This leaves the many civilians that depend on humanitarian aid to survive in an even more precarious situation. The increasingly easy access to highly lethal weaponry in conflict zones both facilitates such violations and aggravates their consequences. Nevertheless, such incidents can be prevented. It is obvious that no single measure can effectively prevent weapons from being used in violation of international humanitarian law. Yet, the establishment of strict controls on weapons transfers to prevent further proliferation is an indispensable part of the solution. Without effective measures in this area, it is unlikely that much progress will be made in reducing the misuse of weapons on the ground. And the price of inaction is high, in 67 Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms of 26 August 2008, UN Doc. A/63/334. 68 See GA Res. A/C.1/63.L.39, 17 October 2008, Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. 69 See especially ICRC, Arms Availability and the Situation of Civilians in Armed Conflict. A Study by the International Committee of the Red Cross, 1999, available at http:// www.icrc.org/Web/Eng/siteeng0.nsf/html/p0734.

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terms of human suffering, social and economic disruption and the burdens of intervention when the international community decides to act. For these reasons, the ICRC strongly supports the development of global standards for regulating arms transfers based on states’ responsibilities under international law and welcomes the resolutions adopted by the General Assembly.70 A future arms trade treaty must take full account of states’ existing obligations under international law, including under international humanitarian law. States’ obligation to ensure respect for IHL is particularly relevant for decisions to transfer military weapons. An international arms trade treaty should include a clear requirement for states not to authorize the transfer of arms and ammunition that are likely to be used to commit serious violations of IHL. Although international law allows states to acquire arms for their security, they also have an obligation to “respect and ensure respect” for international humanitarian law under Art. 1 common to the 1949 Geneva Conventions and their Additional Protocol I.71 Not only do states have to respect the law, but they also have a responsibility to “ensure respect” for international humanitarian law by others. This is generally interpreted as conferring a responsibility on third-party states not involved in an armed conflict to refrain from encouraging a party to an armed conflict to violate international humanitarian law, to refrain from action that would assist in such violations, and to take appropriate steps to cause such violations to cease.72 Any weapons transfer should thus be considered in light of states’ obligation to ensure respect for humanitarian law.73 States that produce and export arms can be considered particularly influential in “ensuring respect” for international humanitarian law owing to their ability to provide or withhold the means by which violations may be committed. They should therefore exercise particular caution to 70

ICRC, The development of an international arms trade treaty, Official Statement, 18 March 2008, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/small-armsstatement-180308. 71 Art. 1 of the for Geneva Conventions and of AP I states: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” 72 See for example Jean S. Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, 24 et seq., and Yves Sandoz/Christophe Swinarski/Bruno Zimmermann (eds.), Commentary on the First Additional Protocol, ICRC, 1987, 33 et seq. 73 This concept was endorsed by states parties to the Geneva Conventions and the components of the Red Cross and Red Crescent Movement in the Agenda for Humanitarian Action adopted by the 28th International conference of the Red Cross and Red Crescent in 2003, available at http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/p1103/$File/ICRC_ 002_1103.PDF!Open, 18.

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ensure that the weapons transferred are not used to commit serious violations of international humanitarian law. A future treaty should also reflect other obligations under international humanitarian law that are directly relevant to arms transfers, e.g. existing prohibitions on the transfer of specific weapons. These include a prohibition on the transfer of: (1) certain types of landmines under Amended Protocol II; (2) blinding laser weapons under Protocol IV to the 1980 Convention on Certain Conventional Weapons; (3) anti-personnel mines under the 1997 Convention on the prohibition of antipersonnel mines; and a requirement not to transfer weapons whose use has been prohibited, e.g. expanding and exploding bullets. Even when these treaties do not specifically prohibit the transfer of such weapons, allowing the transfer of prohibited weapons would be difficult to reconcile with states’ duty to ensure respect for humanitarian law.

E. Conclusion A comprehensive global agreement that would strengthen control over international arms transfers is urgently needed. The continued unregulated supply of weapons to areas where they are likely to be used to violate international humanitarian law demonstrates that existing controls are far from adequate. In the absence of stricter controls, the human costs of unregulated arms transfers are likely to continue to grow as more weapons find their way into the hands of those who will use them to commit atrocities, to violate international humanitarian law and human rights, to spread terror and to commit other crimes.

International Humanitarian Law in the European Union’s Common Foreign and Security Policy, in Particular the EU Code of Conduct on Arms Exports By Christiane Höhn*

A. Introduction As a rule-based organization the European Union (EU) favors a rule-based international order. The European Security Strategy, adopted in 2003, which for the first time sets out a common European vision on the threats the EU faces and how to respond to them, states: “The development of a stronger international society, well functioning international institutions and a rule-based international order is our objective. We are committed to upholding and developing International Law. The fundamental framework for international relations is the United Nations Charter … We want international organisations, regimes and treaties to be effective in confronting threats to international peace and security, and must therefore be ready to act when their rules are broken.”1 The EU’s guidelines on the promotion of international humanitarian law (IHL) recognize that “the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. This includes the goal of promoting

*

Dr. Christiane Höhn, LL.M. (Harvard) has been working on transatlantic relations and issues related to counter-terrorism and international law in the Council Secretariat of the European Union since 2004. The views expressed in this article are those of the author alone and should not in any way be considered as expressing an official position of the General Secretariat of the Council of the European Union or any of its officers. The author would like to thank Rosemary Chabanski from the Council of the European Union for valuable input and comments and Frank Hoffmeister from the European Commission for helpful comments on an earlier draft. 1 A Secure Europe in a Better World, European Security Strategy, 5 December 2003, http://register.consilium.europa.eu/pdf/en/03/st15/st15849.en03.pdf (last visited 20 October 2008).

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compliance with IHL.”2 These two examples show that the respect for and promotion of international law is at the core of many EU external policies.3 In the first part, the paper explains the EU’s guidelines on the promotion of international humanitarian law. In the second part, it analyses the EU Code of Conduct on Arms Exports as an example of EU policy to ensure respect of international humanitarian and human rights law.

B. The European Union’s Guidelines on Promoting Compliance with International Humanitarian Law4 International humanitarian law plays an increasingly important role in EU foreign policy, both in policy dialogues with third countries and because the EU is increasingly present in situations of armed conflict with its own military and civilian crisis management operations. This importance of IHL was underlined in 2005, when the Council of the EU adopted policy guidelines on promoting compliance with IHL.5 The guidelines aim to “ensure respect” of IHL by third countries.6 While the guidelines acknowledge that “the same commitment extends to measures taken by the EU and its Member States to ensure compliance with IHL in their own conduct, including by their own forces, such measures are not covered by these Guidelines.” The EU has also adopted other policy guidelines in the field of human rights, for example Guidelines for EU Policy towards Third Countries on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

2

European Union Guidelines on Promoting Compliance with International Humanitarian Law, Official Journal of the European Union of 23 December 2005, 2005/C 327/04, http:// eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2005:327:0004:0007:EN:PDF (visited 27 July 2008). 3 For more examples see Frank Hoffmeister, The contribution of EU practice to international law, in: Marise Cremona (ed.), New developments in EU external relations law, Collected Courses of the Academy of European Law, volume XVII/1, 2008, 37–127. 4 See note 2. 5 On the EU’s IHL guidelines see also Christiane Höhn, Cooperation with Regional Organizations: European Union, in: Report of the Second Universal Meeting of National Committees on International Humanitarian Law, Geneva, 19/21 March 2007, ICRC publication, 90 et seq. 6 Common Art. 1 of the Geneva Conventions obliges state parties to respect and to ensure respect of the Conventions.

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(2001)7 and EU Guidelines on Children and Armed Conflict (2003).8 The IHL guidelines are meant as a tool, a basis for EU action. Day-to-day implementation and follow-through is key. Given the increasing development of the EU’s Common Foreign and Security Policy and the European Security and Defense Policy (ESDP), promoting IHL on the national level has to be complemented by promotion of IHL on the EU level in order to prevent gaps and ensure consistency. The EU – for example COJUR, the Council Working Group in which legal advisers from member states and EU institutions meet several times a year – is a forum for member states to discuss and coordinate approaches to questions relevant to IHL if appropriate. Legal advisers have discussed international law principles relevant to the fight against terrorism. Representatives of the International Committee of the Red Cross (ICRC) regularly meet with the ambassadors of the Political and Security Committee and other working groups to exchange views on IHL as well as operational and protection issues. The EU strongly supports the important work done by the ICRC. The IHL guidelines begin with an introduction that provides the common understanding of the member states on the evolution and sources of IHL, scope of application of IHL, the relationship between IHL and human rights law (complementarity – “may both be applicable to a particular situation”) and individual responsibility. Most relevant in this context is the operational part of the guidelines. Information about IHL and its applicability to a given situation is necessary before the EU can take action. Therefore, the guidelines state that “situations where IHL may apply must be identified without delay.” The relevant Council working groups should monitor the situation and, if appropriate, exchange views with bodies such the ICRC and the UN. Where appropriate the working groups “should identify and recommend action to promote compliance with IHL.” EU officials on the ground, such as heads of mission, commanders of ESDP operations and EU special representatives should in their reports to Brussels assess the IHL situation of a given state or conflict. There are a number of possible actions that the EU can take to promote compliance with IHL. IHL issues should be discussed in the EU’s political dialogues with third countries. This is being done. For example, over the past two years, legal advisers from the ministries of foreign affairs of the EU member states, with the assistance of the EU Council Secretariat and the European Commission, and the 7 http://ec.europa.eu/external_relations/human_rights/guidelines/02_torture_2001/guide lines2_en.pdf. 8 http://ec.europa.eu/external_relations/human_rights/child/caafguidelines.pdf.

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Legal Adviser of the US State Department have been engaging in an in-depth dialogue on international law and various aspects of the counterterrorism effort, including questions related to international humanitarian law. IHL can also be raised with the parties to an armed conflict, in particular when an ESDP operation is deployed to a conflict area. The EU’s goal is to mainstream human rights, IHL and gender into ESDP operations. Human rights and gender advisers are working in the operations. Preventing and suppressing IHL violations should be considered in the mandates of EU crisis management operations. For example, the ESDP operations can cooperate on collecting information for the ICC or other war crimes investigations. The guidelines state that the EU should support the prosecution of war crimes. Accordingly, the EU’s support to the ICC is to be seen in this context. The EU can use public statements to promote compliance. For example, the EU-US summit declaration of 2008 states that “[w]e will ensure that efforts to combat terrorism comply with our obligations under international law, in particular international human rights law, refugee law and humanitarian law.”9 Such statements and/or demarches can also refer to IHL violations in the context of a specific armed conflict. The EU can also adopt sanctions to promote compliance with IHL. The EU should cooperate with the UN and regional organizations to promote compliance with IHL. The IHL guidelines also cover arms exports in the section “Means of action at the disposal of the EU in its relations with third countries:” “The European Code of Conduct on Arms Exports provides that an importing country’s compliance with IHL should be considered before licences to export to that country are granted.”

C. The EU Code of Conduct for Arms Exports10 I. Introduction In June 2008, the Code of Conduct marked its 10th anniversary. After the recent EU enlargements, participation in the Code has increased from 15 to 27 countries. The Code is a politically binding instrument designed to set common

9 http://www.eu2008.si/en/News_and_Documents/Press_Releases/June/0610EU_USA_ Declaration.html (visited 27 July 2008). 10 http://smallarmssurvey.org/files/portal/issueareas/measures/Measur_pdf/r_%20 measur_pdf/European%20Union/EUCodeofConduct%20080698.pdf (visited 27 July 2008).

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standards across the EU for the export of conventional arms.11 The Code seeks to create “high common standards” for exports and transparency among member states. For the first time, states have accepted a regional code of conduct. It is the most advanced and comprehensive arms control regime worldwide.12 The Code was a milestone in the development of a common EU approach to arms exports. It is the most important element of the EU’s agenda to harmonize national export policies and promote more responsible licensing of arms exports.13 It builds on the Common Criteria for arms exports that the EU had adopted in the early nineties and is part of the EU’s Common Foreign and Security Policy. In the seventeen years since the adoption of these first common standards, the EU’s role as a coordinator and generator of policy increased considerably in this sensitive area.14 The establishment of the Common Foreign and Security Policy under the Treaty of Maastricht in 1992 is one of the several factors which led to the development of an EU approach to arms export controls: An industrial restructuring process had transnationalized arms production – the consolidation and internationalization of the European defense industry during the 1990s provided a strong rationale for coordinated export policies. Industry called for this to facilitate crossborder cooperation and streamline export efforts. Furthermore, a single market had been created for civilian and, with some restrictions, for dual-use goods. While during the Cold War association with the Eastern or the Western blocs and their interests was an overriding criterion for decision-making on arms exports, other 11 For a recent case study of the EU Code of Conduct, see Mark Bromley, The Impact on Domestic Policy of the EU Code of Conduct on Arms Exports: The Czech Republic, the Netherlands and Spain, SIPRI Policy Paper No. 21 (2008). 12 See Ninth Annual Report According to Operative Provision 8 of the European Union Code of Conduct on Arms Exports, Official Journal of the European Union of 26 October 2007, 2007/C 253/01, Introduction, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2007:253:0001:0332:EN:PDF (last visited 27 July 2008); Luca Trinchieri, Is the 1998 Code of Conduct on Arms Exports Adequate to Support the EU’s Promotion of Human Rights? Assessing the effectiveness of Criterion 2 in curbing the exports of small arms to third countries, Hamburger Beiträge zur Friedensforschng und Sicherheitspolitik, Heft 149, 2008, 14: According to UNIDIR, it is the “most sophisticated and effective multilateral arms export control instrument in the world.” 13 Bromley (note 11), 1. 14 Bromley (note 11), 1. See also Art. 296 (1) of the TEU which states that “… (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security; (b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms munitions and war material …”

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considerations – such as competitiveness of the industries – became more prominent afterwards. In the face of shrinking markets, EU member states wanted to prevent so-called “undercuts,” when the denial of an export license by one member state was undermined by the granting of such a license by another member state. Moreover, the 1991 Gulf War highlighted the fact that arms exports might be used against the armed forces of the supplier states or their allies. Armed conflicts that broke out in the Balkans and in Africa called for consideration of the relationship between arms exports and issues of economic development, human rights and conflict prevention. The promotion of human rights has found a unique place in EU foreign policy; this has to be implemented with concrete action. Several scandals were discovered in the 1980s and 1990s when European arm manufacturers were able to bypass national regulations, which led to new, stricter regulation in several European states. These states were interested in the adoption of stricter policies on the EU level in order not to lose competitiveness. The European Parliament and NGOs had also called for such a code. Work on a more operational and binding agreement started in 1997 and a joint British-French first draft was circulated in the beginning of 1998, leading to the adoption of the Code in June 1998.15 The Council Working Party on Conventional Arms Exports (COARM) deals with the implementation and further development of the Code. Around six COARM meetings are held each year, which allow for exchange of views on individual recipient countries and discussion of implementation of the Code’s Criteria. The group creates a European network of national licensing officials. The Code has been a dynamic instrument, attracting major interest from the European Parliament and NGOs. The Code provides for an annual review of the document. While the text itself has so far remained the same, implementation of the Code has been developed and refined over time, as the public yearly implementation reports show (nine reports so far, in which the Council assesses implementation of the Code). Member states are generally interested in getting standards that have been adopted at the national level – for example under pressures generated by NGOs or parliaments – and seek to get those standards adopted across the EU.16 One of the major achievements of the Code has been the increase in transparency.

15

On the reasons for development of the common EU approach to arms exports see Sibylle Bauer/Mark Bromley, The European Union Code of Conduct on Arms Exports. Improving the Annual Report. SIPRI Policy Paper No. 8 (2004), 2 f.; Bromley (note 11), 5 et seq.; Trincheri (note 12), 12 et seq.; Holger Anders, The EU Code of Conduct on Arms Exports: The Current State of Play, Groupe de recherche et d’information sur la paix et la sécurité, Note d’Analyse, 2006, 4 et seq. 16 Bromley (note 11), 10.

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Finally, it should be noted that the export of dual use goods and technology is controlled by a Council regulation (Dual Use Regulation) adopted on the basis of Article 133 EC.17 It makes reference to the Criteria of the Code to be followed for exports of dual-use goods, hence makes it legally binding in this context. Arms brokering was regulated by a Council Common Position in 200318 after criticism of the absence of any provision for the control of arms brokering in the Code. It requires member states to assess license applications for specific brokering transactions against the provisions of the Code of Conduct to establish a system for information exchange on brokering activities and to establish adequate sanctions.19 The reference by both instruments to the Code show that it has become a policy coordination tool far beyond its scope.20 EU member states also support the development of an international arms trade treaty. Council Conclusions calling for a legally binding international arms trade treaty were adopted on 11 December 2006, on 18 June and on 10 December 2007.21

II. Provisions of the Code 1. General The Code sets out eight Criteria that have to be taken into account by member states when granting export licenses. These Criteria provide for a common minimum – member states can apply higher standards. It also has operative provisions that have to be implemented by the member states (for example reporting requirements, notification of denials, consultation and information exchange). The Code applies to export items listed in the agreed EU Common Military List. This list mirrors the list of the Wassenaar regime and is regularly updated. The most recent version of the Common Military List of the European Union, which updates previous versions, was adopted by the Council on 10 March 2008.22

17

Council Regulation (EC) No. 1334/2000 of 22 June 2000, setting up a Community regime for the control of exports of dual use items and technology (as last amended by Council Regulation (EC) No. 1183/2007 of 18 September 2007). 18 Common Position 2003/468/CFSP on the control of arms brokering. 19 On the control of arms brokering see Anders (note 15), 7; Bromley (note 11), 10. 20 Trinchieri (note 12), 12. 21 On the EU’s and member states’ contributions to an arms trade treaty see Ninth Annual Report (note 12), I. 6. 22 Official Journal of the European Union of 18 April 2008, 2008/C 98/01.

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The Code is applied by the member states. Several member states have incorporated the Criteria of the Code in their national legislation or have included a direct reference to the Code in their national laws.23 However, the decision to transfer or to deny remains within the national discretion of each member state. The EU played an active role in influencing the development of arms export policy with all acceding states, which had to bring their policies into line with the Code of Conduct. The EU employed benchmarking and monitoring (ranking overall progress of applicants). The EU also provided examples of best practice, legislative and institutional templates (arguably one of the most important tools) and advice with regard to the arms export policies of acceding states. Compliance with the EU Code of Conduct was frequently mentioned in accession reports.24 The Criteria can be divided into two categories:25 under some Criteria, denial of licenses is obligatory. While the other Criteria must be taken into consideration when issuing licenses, the conclusion is left to the discretion of the exporting country, hence their impact is weaker. The Criteria state that exports have to respect the international commitments of EU member states – in particular sanctions and non-proliferation agreements. Licenses have to be denied in case of internal tension/internal armed conflict, in case of risk for regional peace and security, in case of risk for the national security of member states and allied countries, risk of re-export or diversion under undesirable conditions. Arms exports have to be compatible with the technical and economic capacity of the recipient country. The most relevant Criteria concerning international humanitarian law, namely the respect of human rights and international law by the recipient country, are Criteria Two and Six, which will be examined more closely below. A blacklist of countries to which export is generally prohibited is not included in the code. However, Criterion One states that an export license should be refused if approval would be inconsistent with an EU arms embargo. All member states are obliged to respect EU arms embargos which take the form of a Common Position. As of March 2008, there were autonomous EU embargoes – going further than UN sanctions – against Iran, Myanmar, North Korea, Sudan and Uzbekistan and also China (but the latter was only a political Council Conclusion, not a Common Position).26

23

Bromley (note 11), 11 et seq. Bromley (note 11), 17 et seq. His paper includes an interesting case study on the impact of the Code on the Czech Republic. 25 Bauer/Bromley (note 15), 3. 26 See Bromley (note 11), 12. 24

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Member states have developed a regularly updated, publicly accessible User’s Guide to assist with implementation of the Code in the COARM Working Party.27 The User’s Guide is intended to help member states apply the Code of Conduct. It does not replace the Code in any way, but summarizes agreed guidance for the implementation of its operative provisions. It is intended for use primarily by export licensing officials.28 The User’s guide also identifies best practices for the interpretation of the Criteria which identify factors that complement those in the EU Code Criteria and that officials can take into account when considering whether an export application is permissible under the Code.29 The User’s Guide has gained in comprehensiveness over the years.

2. Criterion Two: Human Rights In line with the EU’s principle to promote the respect of international humanitarian law and human rights in third countries, Criterion Two requires an assessment of the human rights situation in the country of final destination. It prohibits exports if there is a specific risk of use of the equipment by the end-user for human rights violations (Criterion Two a)). In addition, exports may be denied in the case of a bad human rights track record generally (Criterion Two b)). Numerous denials of licenses have been based by member states on Criterion Two.30 A recent study found that since the introduction of the Code, there has been an overall reduction in exports from EU member states to countries in conflict and countries where human rights abuses take place, which was stronger than the overall global trend.31 Export licenses must be denied if there is a “clear risk that the proposed export might be used for internal repression” by the “end-user (the part of the security forces that will use the material) or when there is reason to believe that the equipment will be diverted from its stated end-use or end-user and used for internal repression.” Criterion Two states that such repression includes, for example, “torture 27

The latest version of the User’s Guide of 29 February 2008 is available at http:// register.consilium.europa.eu/pdf/en/08/st07/st07486.en08.pdf (visited 27 July 2008). 28 Council of the European Union website, Security-related export controls II, Military equipment, http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=1484&lang=en (visited 27 July 2008). 29 Anders (note 15), 2. 30 In the Annual Report, tables indicate the Criteria upon which denials have been based. For latest data see the Ninth Annual Report (note 12). 31 Bromley (note 11), 16, referring to Mark Bromley/Michael Brzoska, Towards a Common, Restrictive EU Arms Export Policy? The Impact of the EU Code of Conduct on Major Conventional Arms Exports,” European Foreign Affairs Review 13 (2008), 333 et seq.

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and other cruel, inhuman and degrading treatment or punishment, summary or arbitrary executions, disappearances, arbitrary detentions and other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on civil and Political Rights.” This is the first type of Criterion, which makes denial an obligation. According to the User’s Guide, it is important to note in the text that “clear risk” is combined with “might be used,” which requires a lower burden of evidence than the word “will.” In addition, even if there is no risk that the particular export item itself would be used for human rights violations, member states have to “exercise special caution and vigilance issuing licences, on a case-by-case basis and taking account of the nature of the equipment” when serious human rights violations by the importing country have been established by international bodies. This is the weaker, second type of Criterion, which leaves denial to the discretion of the exporting state. As a codification of best practices for the interpretation of Criterion Two,32 the User’s Guide to the Code points out that, because of the link to the respect of human rights by the recipient country, “special attention should be given to arms exports to countries where there are human rights violations.” There is a common EU base of information, which often includes information from other sources, for example reports of EU heads of mission in the country and EU human rights fact sheets. Other information can be obtained for example from the UN, the ICRC, other international organizations and NGOs. When assessing the risk that the proposed export might be used for internal repression, member states should consider the human rights track record of the proposed end-user and recipient country generally, including effectiveness of human rights protection in the constitution, impunity, independent monitoring bodies and human rights training. The recipient country’s attitude towards human rights can be assessed with indicators such as ratification and implementation of international human rights instruments, bringing human rights violators to justice, degree of cooperation with human rights mechanisms and political will to discuss human rights issues in a transparent way. Violations of human rights do not have to be systematic or widespread to be considered as “serious.” It is rather the character, nature and consequences of the violation in question, and whether the EU, the UN or the Council of Europe have established such violations. The absence of such a qualification, however, should not preclude member states from determining a serious violation.

32

User’s Guide (note 27), 40 et seq.

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In terms of end-user, it is important who will use the equipment, for example which part of the security forces and what role this end-user has in the recipient state. The question of internal diversion to other users than the designated end-user must also be considered. 3. Criterion Six: International Law, Including IHL In Criterion Six, respect of international law including international humanitarian law is generally required by the recipient country. The record and attitude of the recipient country has to be taken into account when granting export licenses. The focus of the analysis is the behavior of the buyer country itself rather than the particular risk of negative consequences of a specific transfer. Hence, the goal is to avoid any kind of arms exports to those countries whose governments do not comply with international commitments. Neither the type of equipment nor the final end-user are the focus of analysis for this Criterion. Member states consider whether the recipient country respects its international commitments. Indicators with regard to IHL include whether the recipient country has engaged in serious violations of IHL during armed conflict and whether the recipient country has made a formal commitment to apply the rules of IHL and has procedures and structures to repress serious violations of IHL. Again, sources of information can be the common EU base of information, the ICRC, the UN and NGOs. While the Code itself only says that member states have to “take into account” the track record of the recipient country, the User’s Guide33 makes clear that “Member States will not issue a licence where the general evaluation of the buyer country’s record with reference to Criterion Six is not positive,” hence, transfers would have to be denied. This would make Criterion Six stronger than Criterion Two b) on the respect for human rights generally, which only requires to exercise “caution and vigilance.” As human rights protection is part of the international commitments of a country, one can argue that non-respect for international human rights law by the recipient government is covered by Criterion Six in addition to Criterion Two, which provides an additional, stronger reason for denial. 4. Notification and Consultation Mechanism about Denials Given the political nature of the Code, it is enforced through its operative provisions which create a mechanism for notification and consultation about denials. 33

User’s guide (note 27), Best practices of interpretation of Criterion 6, 74 et seq.

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This mechanism is unique. It is the first mechanism of its kind ever applied to conventional arms exports. Sharing information on denials is one of the most important means to achieve convergence of export control policies and to prevent undercuts. If a member state denies a license based on the Criteria set out in the Code, it has to notify the other member states and give detailed information, including the reason for the refusal. If another member state wants to grant a license which has been denied for a more or less identical transaction within the last three years, it has to consult with the member state that denied the license and give the reasoning why it intends to grant the license. If after that consultation the member state still wants to go ahead and grant the license, it can do so, but it has to inform in detail about its reasoning.34 This information is shared, to the extent appropriate, with all member states in COARM. The consultations about the denial and possible undercut, however, take place only between the two member states concerned.35 This system creates transparency, peer review and peer pressure. In the year 2005, for example, there were 355 denials in total, 58 denials based on the human rights Criterion and six on the international law Criterion that includes IHL. In 2007, there were 356 denials in total, 104 based on the human rights Criterion and seven based on the international law Criterion.36

5. Reporting and Outreach Every year, an annual report on arms exports of all member states is published. The publication of the report is not mandatory, but it has been practice from the beginning. The reports have improved over the years in quality and quantity of the data provided. Its volume has increased from one page of statistical data in the first report to 332 pages overall in the most recent report. More states are now reporting not only on licenses, but also on the financial value of the licenses of actual exports broken down by destination and EU Common Military List category. This requirement has been added since the Sixth Annual Report. Previously, states had only been asked to submit the total value of export licenses granted and actual exports. The EU Annual Report has had a significant impact on public transparency in the field of arms export policies.37

34 35 36 37

On the mechanism see also Bauer/Bromley (note 15), 4. Bauer/Bromley (note 15), 16. Ninth Annual Report (note 12), 317. Bromley (note 11), 13.

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The reporting on the EU level has contributed to more, and more detailed national reports by EU member states. As of March 2008, 19 out of 27 member states had published a national report at least once, while only five out of 25 did so in 1998.38 The Annual Report enables member governments, parliaments and civil society to understand how the EU Code is being interpreted at the national level by each member state.39 By allowing the comparison with license denials and practices of other EU member states, the Code has introduced a new comparative element in national debates and can be seen as empowering actors at the national level that favor more restrictive and responsible arms exports. National parliamentarians and NGOs highlight perceived examples of best practice in other EU member states.40 For governments, access to decisions made by other EU member states has helped to support their licensing decisions vis-à-vis other government departments, industry, parliamentarians and NGOs. The EU is engaged in outreach efforts by organizing workshops and seminars to have the principles of the Code adopted by neighboring countries. A number of third countries – Bosnia and Herzegovina, Canada, Croatia, the Former Yugoslav Republic of Macedonia, Iceland, Montenegro and Norway – have officially aligned themselves with the Criteria and principles of the Code.41 The EU is also discussing the Code in COARM Troika meetings with countries such as Canada, the US, Russia, Ukraine and Norway.42

III. The Way Ahead In 2005, work was finalized at the technical level on the transformation of the Code into a legally binding Common Position43 under the EU’s Common Foreign and Security Policy (Art. 15 TEU), as suggested by the European Parliament. This would transform the political obligations under the Code into legal obligations of the member states. However, the European Court of Justice would not have jurisdiction in this area. The formulation of the export Criteria would remain largely 38

Bromley (note 11), 13. Bauer/Bromley (note 15), 1. 40 Bromley (note 11), 43. 41 Ninth Annual Report (note 12), Introduction, I. 4. 42 Ninth Annual Report (note 12), I. 4. (b). 43 Draft Council common position defining common rules governing the control of exports of military technology and equipment, 28 June 2005. On the Common Position see Anders (note 15), 2 et seq.; Bromley (note 11), 10. 39

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unchanged, but an exception relevant to IHL would be Criterion Two: It would be added that export licenses will be denied if the military equipment might be used in serious violations of IHL. In addition, certain good practices that have been developed in COARM would be introduced in the Common Position. The Common Position has not yet been adopted because of political reasons: Some member states link the adoption of a Common Position to the lifting of the China arms embargo – however, the lifting of the embargo is not on the agenda at the moment. While it would, of course, be a step forward if a legally binding Code was adopted, in practice it might not make a big difference whether the Code is legally or politically binding. If the member states did not agree to the Code and its Criteria, they would not have accepted it in the first place. The transparency about the denials and publication of detailed facts and figures about each country’s export activities create the necessary peer pressure for compliance. Furthermore, the Criteria of the Code have already become legally binding with regard to arms brokering and dual-use goods. It has also been proposed to develop a “toolbox” for transfers to destinations for which an EU arms embargo has been lifted. Member states would exchange information on export licenses granted to the previously embargoed destination every three months.44 The “toolbox” has not been adopted yet given the political link to the lifting of the China arms embargo and the adoption of the Common Position made by some member states. Regarding intra-EU transfers of military equipment and services, the Commission published a proposal for a directive45 aimed at streamlining export control regulations for intra-EU transfers of military equipment and services, which would create a simplified export license mechanism to cover multiple shipments of military goods to another country within the EU. The exporting state would retain control over the destinations for re-exporting the goods and would be free to determine the list of goods to be covered by the mechanism. Here also, the responsibility for export licensing would remain with the member states.46 Discussions on the Commission proposal are ongoing, including in COARM.47

44

Bromley (note 11), 30. Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council on simplifying terms and conditions of transfers of defencerelated products within the Community, document COM (2007) 765 final, Brussels, 5 December 2007. 46 See Bromley (note 11), 10 et seq. 47 Ninth Annual Report (note 12), II. 3. 45

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D. Conclusion International humanitarian law and human rights law is increasingly important in EU foreign policy conceptually and in the development of policies that support the aim of promoting the respect of international law in third countries, as the examples European Union’s Guidelines on promoting compliance with international humanitarian law and the EU Code of Conduct on Arms Exports show. The IHL guidelines have contributed to mainstreaming international humanitarian law into the EU’s foreign policy. IHL has now become one of the factors to be analyzed, considered and promoted by the EU with regard to situations of armed conflict. While the guidelines are an important tool, the focus for the future will be on further improving their implementation. The Code of Conduct is a good example of EU policy making in areas considered particularly sensitive by the member states, such as those related to defense and armaments. Decisions that were previously made at the national level are now subject to policies jointly agreed upon by EU member states. External developments resulted in the necessity to introduce an EU-wide regulatory system. The progress in building this system has been mostly incremental. With the increase of experience and trust in the system as well as confidence in the EU Code as a policy tool, the rules are further developed and expanded and at a later stage often transformed into legally binding instruments. Even the “only” politically binding rules have an important impact on shaping member states’ policies. They create a common framework of reference and allow for EU-wide transparency, comparability and debate. Over the years, a distinctly European arms export control “regime” has emerged which revolves around the Code, but extends far beyond its original scope.48 A sort of political “case law” has been developed to supplement and refine the system.49 This has been achieved through a process of dialogue, negotiation and review based on practical experience, during which national governments have increasingly felt comfortable discussing arms export control in an EU context.50 This is the necessary groundwork that may eventually allow for the codification of a legally binding Common Position. This is how EU foreign policy works generally: small steps, but moving ahead in a steady way.

48 49 50

Bauer/Bromley (note 15), 4. Trinchieri (note 12), 15. Bauer/Bromley (note 15), 4.

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The example of the Code shows that in the context of EU foreign policy, politically binding documents often have an important impact beyond their original scope by creating a framework for debate, review and policy development as well as by subsequent incorporation into legally binding obligations (as happened with the Code with regard to arms brokering and dual-use goods and might happen in the future with the Common Position). The Code of Conduct “regime” is important in several ways: The latest Annual Report states that “since its adoption the Code has contributed significantly to the harmonization of national arms export control policies.”51 It has created an active debate at the EU level and has informed national debates. Arguably, transparency has been one of the greatest achievements of the Code. The system is dynamic and constantly being updated and improved. It has become a topic of debate with third countries and might be an important building block towards an international arms trade treaty that EU member states support. The participation in the Code has increased considerably over the past ten years, from 15 member states initially to now 27 and seven other countries having aligned themselves to the Criteria and principles of the Code. Hence, the “model” created by the EU ten years ago is spreading and influencing the arms export policies of more and more countries. While progress on implementation of the Code and its further development has to continue – COARM has committed to several priorities in this regard in the latest report – it can be argued that the Code of Conduct has made a positive contribution to more responsible and more transparent arms export policies of the EU member states and beyond.

51

Ninth Annual Report (note 12), Introduction.

Protean Jus ad Bellum By Sean D. Murphy*

A. Introduction On the 100th anniversary of the 1907 Hague Peace Conference, it is entirely appropriate to look back at the accomplishments of that event, and at the strides that have been made over the past century for developing international law and institutions. Perhaps more important, however, is to consider the direction international law will take during the next 100 years – to ask about the legacy that will be discussed at the 200th anniversary of the Hague Conference. The purpose of this essay is to consider the past, present and, especially, future state of the jus ad bellum, the set of rules in international law designed to regulate the resort to war by states. Will the jus ad bellum in 2107 look the same as it does today or, as was the case for the past 100 years, might we anticipate efforts to progressively develop it in some fashion? The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in interstate relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. No other exceptions to the general prohibition are permitted, whether for purposes of rescuing one’s nationals abroad, saving aliens from widespread deprivation of human rights, acting preemptively against a grave but distant threat, or for any other reason. To the extent that some states or commentators see value in further exceptions, the approach is generally still to view the jus ad bellum as static, but to engage in contorted interpretations of the Charter’s text so as to allow further exceptions, or to admit that no exceptions exist but to argue that deviation is legitimate in ex* This essay benefitted from comments by Vijay Padmanabhan and by participants at both the Walther-Schücking-Instituts für Internationales Recht November 2007 conference in Kiel, Germany, and the Temple Law School March 2008 International Law Colloquium in Philadelphia. My thanks to Kelly Dunn for research assistance.

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treme circumstances even if not lawful. Of course some observers, whose views are largely grounded in realism theories of international relations, simply conclude that the jus ad bellum is a utopian notion that has no real relevance for contemporary interstate behavior. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature. Protean jus ad bellum acknowledges that, as of 1945, the static view was correct, but that over time – as we approach the 70th anniversary of the United Nations – the jus ad bellum is changing, buffeted in particular by several significant developments: (1) the emergence of weapons of mass destruction of various types potentially controllable by states and non-state actors; (2) the rise of global terrorism as a mechanism for projecting violence against states by non-state actors; (3) the elevation of the person to a central place in the realm of international law, both in terms of being protected and in terms of being accountable for misconduct; (4) the inability of the Security Council to be accepted by all states as a disinterested arbiter willing and capable of acting to address all threats to international peace and security as they arise; and (5) the continuing erosion of the sanctity of the sovereign state, resulting from exposure to myriad effects of globalization, including intrusive transnational rule of law programs, election monitoring, incessant and extensive media coverage, powerful transnational corporations and non-governmental organization, and relatively unrestricted transborder movement of capital, goods, and persons. Further, protean jus ad bellum refers to a normative regime that is less oriented toward a textual codification of the norm and more toward its practical and nuanced application in a complex and changing global environment. As such, protean jus ad bellum resists a binary approach of regarding all uses of force of a particular type (e.g., humanitarian intervention) as being lawful/unlawful in all situations, and favors instead an approach that calibrates a range of factors that are important in predicting the likely response of the global community to a coercive act. Certain forms of state practice, such as the 1999 NATO bombing of Serbia in support of Kosovar Albanians, will lend credence to the vision of protean jus ad bellum, even as other state practice continues to support the static view. This essay suggests that the failure to either formally accept or reject the idea of protean jus ad bellum is likely, over time, to diminish the jus ad bellum’s effectiveness as a normative regime. Already, there exists considerable confusion or disagreement about the contemporary parameters of the jus ad bellum; if you were to ask a random group of legal advisers to foreign ministries their views on whether, for example, humanitarian intervention, or using force to rescue nationals

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abroad, or a cross-border raid against a terrorist camp, are permissible under the jus ad bellum, you are likely to receive a mixture of answers: some saying yes; some saying no; some insisting that it depends on the circumstances; and some refusing to respond to the question. Too often transnational uses of military force are occurring in circumstances that are inconsistent with the idea of a static jus ad bellum: states and non-state actors are, at least in some situations, tolerating certain types of force in response to the overarching developments noted above. As the International Criminal Court moves closer to including aggression within its mandate for indicting and prosecuting persons, government leaders may see greater value in clarifying what uses of force are permissible. Things could continue as they are. But in the long-term, if the jus ad bellum is not to break down, then a more formal way should be found either to reject the notion of protean jus ad bellum or to accept it, and if the latter, then to try to identify the contemporary rules in this area, either through formal amendment of the UN Charter, through authoritative interpretations by the principal organs of the United Nations or regional organizations, or through other means.

B. Static Jus ad Bellum In many areas of international law, the law accommodates the possibility of change. Under the Vienna Convention on the Law of Treaties (VCLT), for example, practice of the parties subsequent to the entry into force of a treaty is a salient factor for interpreting and reinterpreting the meaning of the treaty.1 Even if the treaty meant X1 at the time it was adopted, practice by the states thereafter may change the norm to mean X2. In the context of a treaty establishing an international organization, such practice may include precedents set by institutional practice of the organization itself; moreover, greater license is typically granted for teleological interpretations of such treaties in recognition of the need for the international organization to evolve over time.2 Customary international law, of course, is also built upon the idea that contemporary state practice, in conjunction with opinio juris, serves to establish the law, even if that law was different at some earlier time. General principles of law, the third main source of international law, can also change to the extent that principles of law operating in legal systems worldwide change over time. International judicial 1

See Art. 31(3)(b) VCLT, 23 May 1969, UNTS, vol. 1155, 331. See, e.g., Louis B. Sohn, Interpreting the Law, in: Oscar Schachter/Christopher C. Joyner (eds.), United Nations Legal Order, 1995, 186–87. 2

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decisions, though in theory limited to the parties in the case before the tribunal, are widely regarded as assisting in the development and evolution of international law over time.3 The jus ad bellum, however, is viewed by most states and scholars as a static norm. Under Article 2(4) of the UN Charter, a state may not use force against another state.4 Under Article 51, a state may respond in self-defense to an “armed attack.”5 Under Chapter VII of the Charter, the UN Security Council, in response to a threat to the peace, may authorize states to take forcible measures.6 Put all together, static jus ad bellum maintains that a state may not use armed force against another state unless it is defending against an armed attack or is authorized by the Security Council to do so. Though it has been more than sixty years since the enactment of the Charter, and though there is considerable state practice involving uses of coercion in circumstances that do not fit the basic paradigm, no consensus exists that the paradigm has changed in any significant way. No doubt there are several reasons why this particular norm has continued to be viewed as static. First, as a formal matter, since the norm is enshrined in the Charter, and since the Charter has a superior status within the hierarchy of international law,7 there is a reluctance to see the norm change absent a formal alteration, such as through amendment of the Charter. This is not to say that the Charter can only change through formal amendment; plenty of examples exist of changes to the Charter through consensus interpretation of the UN member states. Yet such change is not common and does require a high threshold of consensus. Second, the jus ad bellum is considered a fundamental element in international law, so much so that most view it as a norm of jus cogens that cannot be altered by states even through treaty relations.8 While alterations of

3 See, e.g., Competence of the General Assembly for the Admission of a State to the United Nations, ICJ Reports 1950, 4, 15 (dissenting opinion of Judge Alvarez, who asserts that ICJ decisions “create precedents” and dynamically change international law). 4 Art. 2(4) Charter of the United Nations, 26 June 1945, United Nations Conference on International Organization, Documents, vol. XV, 335 et seq. 5 Ibid., Art. 51. 6 Ibid., Arts. 41 and 42. 7 Ibid., Art. 103. 8 Art. 53 VCLT (note 1) defines jus cogens as a norm “accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” The ICJ has referred to the prohibition on the use of force

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other norms may have significant social or economic effects (e.g., establishing and expanding an exclusive economic zone outside the territorial sea), the stakes in altering the jus ad bellum are viewed as considerably higher, and as potentially unleashing a wide range of undesirable coercive behavior. Third, by its nature, the field of jus ad bellum does not have extensive and repeated state practice that allows for definitive evolution of the norm; rather, incidents are sparse, can often be distinguished through reference to unique factual scenarios, and often elicit conflicting interpretations by states and scholars concerning the significance of the incident for the law.9 The principal actors that might formally recognize a change in the norm for the most part have no incentive to do so. Senior government officials in most states have a vested interest in preserving to the extent possible a norm that prevents transnational uses of force, as a means of fortifying their own authority with respect to external threats. Indeed, states without the power to project force across boundaries appear to fear that formal changes in the jus ad bellum would be simply a subterfuge for potential interventionist policies of the major powers. By contrast, the more powerful states (e.g., the United States or United Kingdom) seem to favor the ability to use coercive force in ways that deviate from the static jus ad bellum paradigm, since they tend not to feel threatened by a change. Yet even those states may prefer to try to pigeon-hole their conduct into the static jus ad bellum paradigm, rather than create a new precedent that might someday work to their disadvantage. Meanwhile, groups that might be best served through a change in the paradigm, such as persons facing human rights crises brought on or tolerated by their government, have little formal voice in the state-centric system about whether and how the paradigm should change. For all these reasons, the jus ad bellum as it was conceived in 1945 remains the dominant paradigm, at least formally, today.

C. Protean Jus ad Bellum While there is no formal consensus that the jus ad bellum has changed from the time it was enshrined in the UN Charter, there is considerable reason to think that it is not a static norm, and that informal expectations by states and other actors about by one state against another as “a conspicuous example” of jus cogens, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports 1986, 14, 100, para. 190. 9 See Sean D. Murphy, The Doctrine of Preemptive Self-Defense, Villanova Law Review 50 (2005), 699.

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it have evolved over time and will continue to evolve in the future. Though in the aftermath of the two world wars, consensus crystalized on a broad-scale prohibition on the use of armed force, other overarching developments since 1945 – the development of weapons of mass destruction, the rise of human rights law, and the emergence of global terrorism as a mechanism for projecting violence against states by non-state actors – have significantly affected attitudes toward permissible uses of force. In the face of these challenges, a credible case can be made that the jus ad bellum has not remained static, but has changed and is changing, or assumes different meanings when faced with different situations.

I. The Pre-Charter Era A starting point for viewing the jus ad bellum as protean in nature is to take the long view and recognize that the static position is of relatively recent vintage, itself a product of change. The Hague Peace Conference of 1907, in conjunction with its 1899 predecessor, ushered in a remarkable century for the growth of public international law.10 Part of that growth entailed the emergence of a highly restrictive jus ad bellum that did not previously exist; indeed, at the start of the twentieth century, there was no globally-accepted norm prohibiting the resort to war. The conventions adopted at the two peace conferences, however, began the process of limiting the means by which states could resort to warfare. Thus, the 1907 Hague Convention II prohibited the resort to war completely when the objective was the recovery of debt, unless the debtor state refused or neglected to resolve the matter through arbitration.11 The Hague Convention III required states not to commence hostilities without previous and explicit warning.12 That military force should be resorted to only for good reasons or just cause was, of course, a sentiment that preceded the Hague Peace Conferences, harkening

10

The principal concern of Russian Tsar Nicholas II in convening the Hague Peace Conferences lay in a desire to limit the number of armaments possessed by the major powers of the world and hence to secure a durable peace, an effort that ultimately was not successful. See generally Calvin D. Davis, The United States and the First Hague Peace Conference, 1962. 11 Hague Convention II Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, 18 October 1907, available at http://avalon.law.yale.edu/20th_ century/hague072.asp. 12 Art. 1 Hague Convention III Relative to the Opening of Hostilities, 18 October 1907, available at http://avalon.law.yale.edu/20th_century/hague03.asp.

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back to the just war doctrine of Augustine and Aquinas,13 and even further back to the bellum justum et pium doctrine of early Roman law.14 Yet in Hague Convention II is found the first effort at a conventional prohibition on resort to war in a particular circumstance, where the purpose – economic redress – was considered the least compelling for unleashing the dogs of war. By 1928, some states were willing to take the considerably more extensive step of adhering to an instrument, the Kellogg-Briand Pact (or Pact of Paris), by which they “condemn[ed] recourse to war for the solution of international controversies, and renounce[d] it as an instrument of national policy in their relations with one another.”15

II. Direct Aggression by States The Kellogg-Briand Pact failed to stem the outbreak of World War II, but it set the stage for the codification of Article 2(4) the UN Charter, the center-piece around which the static jus ad bellum is now built. Though often debated, questioned, interpreted, and reinterpreted, Article 2(4), in conjunction with Article 51, has established a quite stable and clear core normative proscription: States are prohibited from using force against other states unless they are acting in self-defense or under Security Council authorization. Though overt military attacks by one state against another continue to this day, they are readily condemned by the global community and they often, though not invariably, elicit significant counter-measures against the aggressor state. Efforts by one state to annex another are almost unheard of – Iraq’s invasion of Kuwait being the exception that proves the rule – leaving instead projections of force designed to temporarily punish a state, diminish its military capacity, or perhaps adjust a bilateral boundary. Hence, at its heart, the jus ad bellum now provides a formidable normative structure unheard of even 100 years ago. Even so, from the start, uncertainty existed about the scope and content of this basic paradigm. Given that Article 2(4) only refers to “force,” is the prohibition limited to use of armed force or does it proscribe other forms of coercion as well?

13 Augustine of Hippo, De Civitate Dei (The City of God), bk. 19, 1958, 7; Thomas Aquinas, Summa Theologica ch. II-II, quae. 40, Art. 1, reprinted in: P. Sigmund (ed.), St. Thomas Aquinas on Politics and Ethics, trans. 1988, 64–65. 14 See Robert Phillimore, Commentaries Upon International Law, vol. 1, 3d ed. 1879, 17–18; Arthur Nussbaum, A Concise History of the Law of Nations, rev. ed. 1954, 10–11. 15 Art. 1 Kellogg-Briand Pact, 27 August 1928, 46, available at http://www.yale.edu/ lawweb/avalon/imt/kbpact.htm.

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What exactly is meant by prohibiting “threats” to use force?16 If a state’s nationals are seized abroad by another state and held hostage, is that a “use of force” within the meaning of Article 2(4)? If a state responds to such action by using military force to rescue its nationals, is that self-defense against an “armed attack” within the meaning of Article 51? Various examples of “rescue of nationals” exist in state practice, but the concept does not sit easily within the terms of the Charter and hence has been controversial.17 In short, even within the core Article 2(4)/Article 51 paradigm, difficult questions have arisen, prompting extensive commentary over the years.18

III. Indirect Aggression by States Uses of force during the Cold War became much more complex than the type of aggression that spawned World War II. Though direct armed conflict between states remained an important concern, other forms of coercion came to pose a more difficult challenge to the jus ad bellum. During the Cold War, the problem of indirect aggression forcefully emerged, whereby one state surreptitiously supplied military and economic support to mercenaries, rebels or insurgents against another state. If one were giving a talk in the 1960s about “new threats” in the jus ad bellum, indirect aggression by states would have been the focal point of the discussion. And because of that, it became important to again revisit what exactly was meant by Article 2(4) and Article 51, in order to elaborate upon what was left unsaid. One important mechanism for illuminating the meaning of the jus ad bellum was through its interpretation, in the context of specific incidents of state practice, by the principal organs of the United Nations – the Security Council and the General Assembly.19 Throughout the initial decades of the Charter, those organs 16

See generally Nikolas Stürchler, The Threat of Force in International Law, 2007; Marco Roscini, Threats of Armed Force and Contemporary International Law, Netherlands International Law Review 54 (2007), 229. 17 See, e.g., Thomas C. Wingfield/James E. Meyen (eds.), Lillich on the Forcible Protection of Nationals Abroad, 2002, US Naval War College (ed.), International Law Studies, vol. 77, 2002; Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity, 1985. 18 See, e.g., Ian Brownlie, International Law and the Use of Force by States, 1963; Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, 2002; Christine Gray, International Law and the Use of Force, 2nd ed. 2004. 19 The path breaking study on this phenomenon remains Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations, 1963.

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adopted various resolutions considering the projection of coercion in various contexts, especially in the Middle East and Southern Africa.20 In some instances, the practice even concerned attacks by a non-state actor against a state, such as the Security Council’s condemnation as “aggression” of the 1977 attack by an invading force of mercenaries on the Marxist-led government in Benin.21 Another important mechanism were interpretations by UN organs in a more generalized fashion. In 1974 the General Assembly adopted its resolution on the Definition of Aggression,22 which served to provide a non-exhaustive list of the kinds of coercion that would violate Article 2(4). The standard paradigm of one state invading or bombarding another state was included, of course, but so were other types of coercion that might have been seen as falling outside the scope of Article 2(4), such as the blockading of ports. The Definition of Aggression recognized that coercion violating Article 2(4) could arise from transboundary conduct of non-state actors – “armed bands, groups, irregulars, or mercenaries, at least when such actors were sent “by or on behalf of a State” and when the coercion was “of such gravity” as to amount the kinds of coercion prohibited to states.23 The 1986 judgment by the International Court of Justice in the Nicaragua case24 served as something of a lightening rod for consideration of the meaning of direct and indirect aggression in the Cold War era. The Court had not previously opined on the meaning of Articles 2(4) and 51, though it had addressed some issues relating to the use force in the course of deciding the Corfu Channel case.25 The reasoning of the Court in Nicaragua was initially somewhat clouded by the highly charged politics of the case, as well as the US refusal to participate in the merits phase, but over time the Court’s judgment seems to have passed into the corpus of accepted jurisprudence, to the point where the United States itself now cites to the judgment as authority. The basic paradigm set forth by the Nicaragua case found that certain acts, such as the mining of another state’s harbors and attacks on another state’s naval vessels and oil facilities, were violations of Article 2(4), a not particularly surprising outcome. More interesting was the Court’s conclusion that certain acts in violation of 20

See generally United Nations, Historical Review of Developments Relating to Aggression, 2003, 225–51, 21 SC Res. 405, 14 April 1977. 22 GA Res. 3314 (XXIX), 14 December 1974. 23 Ibid., Art. 3(g). 24 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports 1986, 14. 25 Corfu Channel (UK v. Alb.), ICJ Reports 1949, 4.

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Article 2(4) might not rise to the threshold of being an “armed attack” for purposes of Article 51, and therefore could not be responded to through the exercise of selfdefense. This lack of symmetry between Articles 2(4) and 51 is well-grounded textually in the Charter, but it also rather unsatisfactorily invites coercive behavior that operates below the radar of “armed attack,” and hence has been criticized. Another notable feature of the Court’s decision was its recognition that an armed attack might occur through the conduct of non-state actors operating across a border. In that regard, the Court confirmed that attribution of such conduct to a state was important in triggering a right of self-defense against that state. Since the Court was not persuaded that the assistance to the Salvadorian armed opposition was imputable to Nicaragua, nor that it was on a “scale of any significance,” the United States had no right to embark on collective self-defense on behalf of El Salvador against Nicaragua.

IV. Distant but Grave Threats The Cold War also saw uncertainty about the temporal scope of the right of self-defense under the Charter. Some maintained that a state could only respond in self-defense after having suffered an armed attack from another state. The text of Article 51 supports that position, since it acknowledges a right of self-defense only “if an armed attack occurs” against a UN Member.26 Yet the complex ways in which contemporary armed coercion can occur, and the dire consequences of a delayed response to that coercion, have prompted observers to advance various arguments for why self-defense may be undertaken even prior to an armed attack. One approach is to emphasize a right of anticipatory or interceptive self-defense, by which is meant acting in self-defense when there is convincing evidence that an armed attack is occurring even though the attacker has not yet penetrated the defending state’s frontier.27 Thus, while it was Israel who first opened fire in the 1967 Six Days War, it has been argued that 26

Ian Brownlie, International Law and the Use of Force by States, 1963, 278: “the view that Article 51 does not permit anticipatory action is correct and … arguments to the contrary are either unconvincing or based on inconclusive pieces of evidence”; id., Principles of Public International Law, 6th ed. 2003, 702: “Since 1945 the practice of States generally has been opposed to anticipatory self-defence.” 27 See, e.g., Quincy Wright, The Role of International Law in the Elimination of War, 1961, 60: “it is not unreasonable to assume that an ‘armed attack’ is intended to include an immediate threat of armed attack, thus justifying military counteraction in individual or collective self-defence before there is an actual armed attack.”

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Israel was responding to an “incipient armed attack by Egypt (joined by Jordan and Syria),” as evidenced by Egypt’s “peremptory ejection of the United Nations Emergency Force from the Gaza Strip and Sinai Peninsula; the closure of the Straits of Tiran; the unprecedented build-up of Egyptian forces along Israel’s borders; and constant sabre-rattling statements about the impending fighting.”28 Those in favor of allowing such anticipatory or interceptive self-defense sought to extend the concept of an external armed attack to the earliest stages of its unfolding (e.g., an “armed attack” begins as soon as your opponent commences warming up its missile silos or directing its battle carrier group toward your coast) or sought to downplay the express text of Article 51 as illustrating but not limiting the manner of self-defense. As a last resort, some observers have stated that such anticipatory action was unlawful, but “may be justified on moral and political grounds,” such that “the community will eventually condone [it] or mete out lenient condemnation.”29 Some state practice supported this position but, as in most areas of the jus ad bellum, the practice was too infrequent and too contested to lead to a consensus position. In 2005, a high-level panel of experts convened by UN Secretary-General Kofi Annan issued a report endorsing the concept of a limited right of unilateral preemptive action when “the threatened attack is imminent, no other means would deflect it and the action is proportionate.”30 Still others have insisted that for especially grave threats, such as the development of a nuclear or other mass destruction weapon by an unpredictable state, it was also permissible to resort to armed force months or even years in advance to prevent the threat from occurring.31 Sporadic practice lent some credence to this concept of preemptive or preventive self-defense, such as the 1962 US-led “quarantine” of Cuba in response to the planned deployment of long-range missiles or the 1986 US bombing raids against Libya purportedly to stem future Libyan terrorism. Yet, again, the practice was too uneven to demonstrate widespread acceptance. Indeed, in some instances, such as the 1981 Israeli attack against a nascent Iraqi nuclear facility at Osirak, the condemnation of the action by the UN General As28

Yoram Dinstein, War, Aggression and Self-Defence, 3rd ed. 2001,172–73. Antonio Cassese, International Law, 2nd ed. 2005, 361–62. 30 UN Secretary-General’s High-level Panel on Threats, Challenges and Change, para. 188, UN Doc. A/59/565, 2 December 2005 (hereinafter “High-level Panel Report”). 31 For a recent proposal, with a preference for authorization by the United Nations or a regional organization, but allowing residually for unilateral action, see Lee Feinstein/AnneMarie Slaughter, A Duty to Prevent, Foreign Affairs 83 (Jan/Feb 2004), 136, 137: “Like the responsibility to protect, the duty to prevent begins from the premise that the rules now governing the use of force, devised in 1945 and embedded in the UN Charter, are inadequate.” 29

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sembly as “aggression”32 and by the Security Council as a violation of the UN Charter33 strongly suggested that such action was prohibited. Most recently, this concept of preemptive or preventive self-defense was endorsed by the Bush Administration in its statements on the US national security strategy, which identified an evolving right under international law for the United States to use military force preemptively against the threat posed by “rogue states” possessing WMDs.34 The US invasion of Iraq in 2003, though technically undertaken based on a legal theory of Security Council authorization,35 has widely been interpreted as an application of the doctrine of preemptive or preventive selfdefense. The 2005 UN High-level Panel did not adopt this concept, finding that if there are “good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to.”36

V. Grave Threats to Persons One of the significant developments of international law in the twentieth century was the rise of human rights; the recognition that central to the project of the rule of law in interstate affairs is the protection of persons from the excesses of their own governments. At the time the Charter was adopted, the concept of human rights was known, but was radically underdeveloped. Through the establishment of a series of multilateral treaties and associated institutions, human rights has emerged as a powerful normative regime for identifying protections that states owe to their nationals and for promoting the global monitoring of those rights. Moreover, the field of human rights has helped open the door for the imposition of criminal responsibility on those persons who unleash human rights violations and in some situations illuminated connections between rights-abuse and threats to international peace. 32

GA Res. 36/27, 13 November 1981. SC Res. 487, 19 June 1981. 34 White House, The National Security Strategy of the United States of America, 17 September 2002, 15: “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. … We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” 35 See Sean D. Murphy, Assessing the Legality of Invading Iraq, Georgetown Law Journal (Geo. L.J.) 92 (2004), 173, 174–76. 36 UN Secretary-General’s High-level Panel Report (note 30), para. 190. 33

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The interface of human rights protections and the use of force prohibition has been troubled, especially since the end of the Cold War. The static jus ad bellum paradigm on its face provides no opening for the transnational use of force to protect the rights of persons within the targeted state absent Security Council authorization. Textual arguments have been deployed in favor of regarding humanitarian intervention as consistent with Article 2(4) since it is not the kind of force proscribed by that article37 or as consistent with Article 51 since “self-defense” necessarily embraces the notion of defense of others,38 while arguments more rooted in moral philosophy or natural law call for interpreting ambiguous rules in favor a just outcome, thus permitting use of force when necessary to save lives.39 Arguable examples of intervention undertaken to prevent human rights crises occurred during the Cold War, such as the interventions of India in East Pakistan in 1971, Vietnam in Cambodia in 1978, or Tanzania in Uganda to oust Idi Amin. After the Cold War, humanitarian crises in the 1990s, especially in Rwanda, continued to provoke a robust debate over the legality of humanitarian intervention.40 Perhaps the high point to date was the March/April 1999 NATO bombing campaign against the Federal Republic of Yugoslavia (Serbia), undertaken to prevent its government from engaging in ethnic cleansing and atrocities in the autonomous province of Kosovo, which in 2008 has become an independent state. Shortly after the Kosovo incident, an International Commission on Intervention and State Sovereignty (ICISS) (established by the Government of Canada) issued a December 2001 report entitled “The Responsibility to Protect,” which sought to provide a legal and ethical foundation for humanitarian intervention.41 The report asserted that a responsibility to protect (or “R2P”)42 exists under international law. 37

See, e.g., W. Michael Reisman, Humanitarian Intervention to Protect the Ibos, in: Richard Lillich (ed.), Humanitarian Intervention and the United Nations, 1973, 167, 177, 38 See, e.g., George P. Fletcher/Jens David Ohlin, Defending Humanity: When Force is Justified and Why, 2008. 39 See, e.g., Fernando Téson, Humanitarian Intervention: An Inquiry into Law and Morality, 3rd ed. 2005. 40 See, e.g., Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order, 1996, 43–46; Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society, 2000; J. L. Holzgrefe/Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal and Political Dilemmas, 2003. 41 ICISS, The Responsibility to Protect (December 2001), available at http://www.iciss. ca/report2-en.asp (hereinafter, The Responsibility to Protect). 42 For a discussion of the emergence of this concept, see Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, American Journal of International Law (AJIL) 101 (2007), 99.

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Further, the report stated that in circumstances when the Security Council fails to discharge that responsibility, “in a conscience-shocking situation crying out for action,” then it “is a real question in these circumstances where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by.”43 By contrast, the 2005 UN High-level Panel, writing in the wake of the 2003 US intervention in Iraq, agreed with the ICISS that there existed an “emerging norm that there is a collective international responsibility to protect,” but concluded that armed force may be used to fulfil the responsibility only if so authorized by the Security Council.44 Further, the High-level Panel identified five criteria of “legitimacy” when engaging in such intervention, relating to the seriousness of the threat, the proper purpose of the intervenors, the exhaustion of other means, proportionality, and a balancing of the ensuing consequences.45 The UN Secretary-General thereafter generally endorsed the High-level Panel’s approach46 as did the General Assembly in its 2005 World Summit Outcome document,47 though neither expressly adopted the five criteria nor expressly ruled out the unilateral use of force.48 While the ICISS drew the line for humanitarian intervention at “conscienceshocking situations crying out for action,” others have argued in favor of using force to protect a broader array of human rights. Thus, rather than limit the use of force only to extreme situations, such as to prevent genocide or crimes against humanity, some favor deployment of armed force to restore a democratic government to power (as arguably occurred with the US intervention in Grenada in 1983). No doubt with an eye on these emerging threats, the Nicaragua Court issued statements casting doubt on the ability of states to use force to protect human rights49 or to bring about regime change,50 although those statements are probably best

43

The Responsibility to Protect (note 41), para. 6.37. High-level Panel Report (note 30), para. 203; see also ibid., paras. 196, 272. 45 Ibid., para. 207. 46 In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005, para. 135. 47 World Summit Outcome, 2005, GA Res. 60/1, 24 October 2005, paras. 138–139. 48 See Stahn (note 42), 120, finding that “states did not categorically reject the option of (individual or collective) unilateral action in the Outcome Document. This discrepancy leaves some leeway to argue that the concept of responsibility to protect is not meant to rule out such action in the future.” 49 Military and Paramilitary Activities in and against Nicaragua (note 24), 134–135, paras. 267–268. 50 Ibid., 133, para. 263. 44

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construed in the context of the facts presented and the positions pled (or not pled) in that case.

VI. Grave Threats from Transnational Terrorism If one were to identify the “new threats” faced at the beginning of the 21st century, many observers would likely point to the problem of potential projection of force on a massive scale by non-state actors, operating largely independently from state control or direction. The ability of non-state actors to project force across boundaries was readily apparent even before 9/11, but 9/11 seems to have raised the awareness level to unprecedented heights. It rather focuses one mind when a terrorist group, Al Qaeda, can organize itself so as launch an attack halfway around the world that inflicts, in a single day, some 3,000 casualties, destroying the World Trade Center, and severely damaging the command center of the US military. Attacks associated with Al Qaeda have occurred annually since 9/11 in various countries from Spain to Indonesia to the United Kingdom. Does the jus ad bellum speak to such attacks? By its terms, Article 2(4) prohibits uses of force by one state against another state. Article 51 is less definitive in addressing only interstate behavior, but arguably the Charter was designed solely to speak to rights and obligations as between states, and any act of self-defense must be in response to an armed attack committed by or attributable to another state. The Nicaragua Court’s viewed attribution of non-state actor conduct to a state as a salient factor before the jus ad bellum is implicated, and that view was confirmed and apparently extended by the Court’s 2004 Advisory Opinion on the Israeli Wall.51 In that opinion, the Court rather summarily dismissed Israel’s claim that it was acting in self-defense against attacks by terrorist groups. According to the Court, Israel could not possibly be acting in self-defense under Article 51 because Israel had not claimed that the terrorist attacks at issue were imputable to a foreign state and because those attacks were not transnational in nature, having occurred wholly within territory occupied by Israel.52 The advisory opinion thus appears to extend the Nicaragua paradigm by saying that it is not possible under any circumstances to engage in an act of self-defense under international law against a non-state actor; rather, you can only engage in an act of self-defense against another state, and thus only in situations where the acts 51

Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136. 52 Ibid., 194, para. 139.

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of the non-state actor are imputable to that other state. Why that is the case, however, especially in light of the reaction of the global community (including the Security Council, NATO, and the OAS) to the attacks by Al Qaeda of 9/11 as justifying a response in self-defense, the Court failed to explain, notwithstanding the admonitions of some of the judges in their separate opinions.53 Criticisms of the Court’s position may have prompted the Court to backtrack in its 2005 case concerning Armed Activities on the Territory of the Congo, where the Court more tentatively noted that, given the circumstances of the case, there was “no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defense against largescale attacks by irregular forces.”54 The ability of non-state actors to project such force transnationally is coupled with the fear that the next time it will not be airplanes but a weapon of mass destruction. Considerable attention is paid to the possibility of a nuclear attack, yet there is also concern that chemical weapons will be used whose toxic properties produce physical or physiological effects – chlorine, phosgene, mustard gas, or nerve gases (such as sarin) come to mind. Similarly, there are fears that a terrorist group might concoct a biological weapon capable of disseminating infectious diseases or conditions that otherwise do not exist or only exist naturally, by using bacteria (e.g., anthrax), viruses (e.g., smallpox), or toxins (e.g., ricin). There are, of course, considerable hurdles for non-state actors in obtaining and delivering such weapons, but they are not insurmountable hurdles, and highly-respected analysts believe the odds to be fairly high that such an attack will eventually occur. Large-scale terrorist attacks through weapons of mass destruction are not the only “new threat.” Mavens of our “information age” observe that new methods of cyber-warfare are becoming a reality, by which states and non-state actors with a comparative disadvantage in hardware may seek to level the playing field through attacks on software. Even non-traditional dangers such as the transboundary movement of infectious diseases, living modified organisms, invasive plant species, or

53

Compare Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, AJIL 99 (2005), 62, with Iain Scobbie, Words My Mother Never Taught Me – “In Defense of the International Court”, ibid., 76; see also Christian J. Tams, Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case, European Journal of International Law (EJIL) 16 (2005), 963, finding that the Court’s opinion on self-defense is “difficult to bring in line with modern state practice, and increases the pressure to admit other, non-written, exceptions to Article 2(4) of the UN Charter.” 54 Armed Activities on the Territory of the Congo (Congo v. Uganda), ICJ Reports 2006, 168, 223, para. 147.

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persistent organic chemicals may emerge as grave threats to which states seek to respond forcibly.

D. Reaffirming or Recodifying the Jus ad Bellum I. Maintaining the Status Quo Defenders of the static view of the jus ad bellum consider the classic 1945 paradigm as normatively the best way of organizing interstate behavior.55 States are permitted to defend themselves when exposed to an armed attack and states are permitted to use force when authorized by the Security Council. In all other circumstances, uses of military force are prohibited, even if intended to prevent human rights atrocities, because any further exceptions threaten to swallow the basic rules. Some defenders may maintain that the rule is sacrosanct, but concede (either publicly or in private conversation) that deviations in extreme situations are legitimate even if not technically lawful. Critics of the static view assert that there are situations where uses of force should be allowed to promote world order, so they typically seek to read the original Charter text as allowing for exceptions.56 On this approach, the Article 2(4)/51 construct sets forth imprecise standards that must be refined through state practice, so clever interpretations of what it means to use force “against territorial integrity” in Article 2(4) or what Article 51 means when it refers to an “inherent right” of self-defense allow these critics to embrace contemporary uses of force that are seen as desirable. Such interpretations are creative, but not particularly persuasive, and certainly have not garnered widespread support. Other critics adopt a more protean view, stating that the enormous changes in interstate relations since 1945 merit rethinking the jus ad bellum.57 Many international relations theorists and some international lawyers see the jus ad bellum as simply no longer reflecting 55

See, e.g., Allen S. Weiner, The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?, Stanford Law Review 59 (2006), 415. 56 For a discussion, see Olivier Corten, The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate, EJIL 16 (2005), 803. 57 See, e.g., Richard N. Gardner, Neither Bush Nor the “Jurisprudes,” AJIL 97 (2003), 585, 586: “The new strategic environment, marked by suicidal terrorists and the spread of mass destruction weapons, requires a different approach”; Jane E. Stromseth, Law and Force After Iraq: A Transitional Moment, AJIL 97 (2007), 628, 637: “If international rules governing resort to force are to endure, they must be built upon and reflect the realities of power and the security needs that confront states in the real world.”

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contemporary law at all, if it ever did. For them, the jus ad bellum is essentially window dressing, trotted out by the major powers when it serves their interests to do so, but shoved aside without much ado when its proscriptions are inconvenient.58 Can this state of affairs, in the long term, endure? Will the current situation remain one hundred years hence? Given the uncertainty that has existed since 1945, it might plausibly be argued that maintaining the status quo is feasible and even desirable. The relatively conservative approach in static jus ad bellum helps discourage pernicious uses of force by limiting exceptions to the Article 2(4) prohibition. While some further deviations might be desirable, and while lawyers may like to have clear and transparent rules that are routinely and uniformly followed, perhaps law in this area should be somewhat vague, generally coercing states into pacific behavior but providing enough “play-in-the-joints” to accommodate major power politics in a world that cannot be neatly packaged. To navigate those uncertainties, a Security Council exists to help interpret when a state ranges too far outside the gray lines, thereby tacitly allowing some uses of force (e.g., Israel’s preemptive self-defense in the 1967 War) while rejecting others (e.g., Israel’s attack on the Osirak nuclear facility). Similarly, the Security Council is available to authorize uses of force that are necessary to address extraordinary circumstances that do not fit static jus ad bellum, such as to stop a government from inflicting genocide or crimes against humanity upon its own people. On this account, the main purposes of the Article 2(4)/Article 51 paradigm have been met by essentially eliminating the recourse to war for territorial expansion, and largely reducing other types of coercion by forcing states to justify their actions as self-defense against an armed attack, and to risk the approbation when the justification is weak. The system may not be perfect, but states are generally comfortable with it, and it is relatively stable. On the other hand, a fairly plausible case can be made that there is already far too much confusion and uncertainty in how the jus ad bellum, as crafted in 1945, should be applied in addressing the wide range of contemporary threats, and that matters may well get worse over the next century. While transboundary uses of force may not be a daily occurrence, they are not infrequent, and their adverse 58

See, e.g., Michael J. Glennon, How International Rules Die, Geo. L.J. 93 (2005), 939; Michael J. Glennon, Why the Security Council Failed, Foreign Affairs 82 (May/June 2003), 16. For an effort to demonstrate that the jus ad bellum regime does impose prudential restraints on the major powers, “altering the manner and timing of their military actions in accordance with the legal arguments they have offered (or intend to offer) to justify those actions,” so much so that in some cases it contributes to the failure of those actions, see Joel H. Westra, International Law and the Use of Armed Force: The UN Charter and the Major Powers, 2007, 153–54.

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affects can be quite grave. The casualness with which Turkey may move armed forces across the border into Iraq to attack PKK bases (discussed below), without any notable condemnation by the international community of the action as unlawful, is striking. Any normative system has gaps and uncertainties, but the list of challenges to the jus ad bellum – on rescue of nationals, humanitarian intervention, indirect aggression, responses to coercion not considered an “armed attack,” responses to coercion by non-state actors, anticipatory self-defense, preemptive selfdefense – is rather long. The Security Council does condemn and occasionally act against some of the most egregious violations of the jus ad bellum, but the system is not, and should not, be designed to regard as permissible all uses of force that are not condemned by the Security Council; indeed, even when blatant aggression occurs, the Security Council does not always act, such as when Iraq invaded Iran in 1980 or Eritrea invaded Ethiopia in 1998. Moreover, as is well known, even after the Cold War, the Security Council is inhibited from either condemning or authorizing uses of force when any one of the five permanent members politically opposes such action, as occurred with respect to Kosovo in 1999. While there are areas of common interests among the Security Council members, those interests are often not in alignment, as can be seen in recent discussions over how to address Iran’s nascent nuclear program (resistance from Russia) or the humanitarian crisis in Darfur, Sudan (resistance from China). And, like any institution, the Security Council makes mistakes.59 To illuminate the problem with the status quo, one might consider the range of conflicting practice over just the past two years with regard to whether a state may respond to a terrorist attack by undertaking a cross-border raid against a terrorist camp without the consent of the host state: – In the summer of 2006, the Hezbollah movement, operating out of Lebanon, crossed into Israel’s northern border, attacked and killed several Israeli soldiers, seizing two as hostages, before returning to Lebanon. Israel responded by sending military forces into, and by bombing portions of, southern Lebanon in an effort to secure the release of the soldiers and to diminish Hezbollah’s military capabilities. During the course of the hostilities, Hezbollah fired some 4,000 rockets across the border into Israel, which Human Rights Watch determined intentionally targeted the civilian population.60 59 See, e.g., Therese O’Donnell, Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004), EJIL 17 (2006), 945. 60 Human Rights Watch, Civilians under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War, 28 August 2007, available at http://www.hrw.org/en/reports/2007/08/28/

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Rather than condemn Israel’s action, the Security Council expressed “its utmost concern at the continuing escalation of hostilities in Lebanon and in Israel since Hezbollah’s attack on Israel on 12 July 2006” and welcomed Lebanon’s efforts “to extend its authority over its territory, through its own legitimate armed forces, such that there will be no weapons without the consent of the government of Lebanon and no authority other than that of the government of Lebanon.”61 – In January 2007, the Palestinian militant organization and political party Hamas was elected as the government of the Palestinian Authority. In June of that year, Hamas seized control of the Gaza strip from Fatah-controlled Palestinian security forces. Since 2002, Hamas has used homemade (relatively crude) Qassam rockets launched from the Gaza Strip to hit Israeli towns in the Negev. More recently, Iranian-made rockets have allowed Hamas to reach large Israeli cities, such as Ashkelon (population of 120,000). That increased capability prompted Israel in early 2008 to launch a major military ground operation as well as air strikes against Hamas fighters in the Gaza Strip.62 To date, no resolutions have been adopted by the Security Council or General Assembly on the matter. – In October 2007, the Turkish government received a one-year authorization from its parliament to conduct military operations in northern Iraq against the Kurdish separatist guerilla organization known as the Kurdistan Workers’ Party (or PKK).63 Since its founding in the 1970s, the PKK has sponsored civilians-under-assault. Human Rights Watch also concluded that, in its response, Israel frequently failed to distinguish between military and civilian targets, and failed to take adequate safeguards to prevent civilian casualties, see Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 War, 5 September 2007, available at http:// www.hrw.org/en/reports/2007/09/05/why-they-died. 61 SC Res. 170, 11 August 2006; see Andreas Zimmermann, The Second Lebanon War: Jus Ad Bellum, Jus In Bello and the Issue of Proportionality, Max Planck Yearbook of United Nations Law 11 (2007), 99; Tom Ruys, Crossing the Thin Blue Line: An Inquiry into Israel’s Recourse to Self-Defense Against Hezbollah, Stanford Journal of International Law 43 (2007), 265. 62 See Griff Witte, 60 Gazans Killed in Incursion by Israel, Wash. Post, 2 March 2008, A1; Taghreed El-Khodary/Isabel Kershner, As Israelis Pull Out of Gaza, Hamas Celebrates Rocketry, N.Y. Times, 4 March 2008, A1. 63 The parliamentary vote was 507 to 19 in favor of using military force by means of strategic strikes or a large-scale invasion, see Molly Moore, Turkey Authorizes Iraq Incursion, Wash. Post, 18 October 2007, A1. Both the United States and the European Union have classified the PKK as a terrorist organization.

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numerous attacks against Turkish forces as a part of its campaign to establish an independent Kurdistan. By some estimates, over the past three decades, Turkey has responded with twenty-four cross-border attacks into Iraq,64 but has failed to route the PKK. The most recent response involved air strikes against PKK camps and villages,65 as well as an eight-day ground offensive.66 Although both the United States and the European Union expressed concerns about Turkey’s action, to date no resolutions have been adopted by the Security Council, the General Assembly, the European Union, or NATO condemning Turkey’s conduct as unlawful. – In January 2008, the United States launched a pilotless CIA Predator aircraft from a base within Pakistani territory which proceeded to fire two Hellfire missiles into a compound of buildings near the Pakistani town of Mir Ali, reportedly killing a senior Al Qaeda commander. While the United States previously had requested specific permission from the Pakistani government for such operations, in this instance such permission was not sought,67 though it may have been the product of a general US-Pakistani arrangement allowing unilateral US action.68 – In December 2006, Ethiopian military forces ousted from power in Somalia a group of Sharia Courts known as the Islamic Courts Union (ICU). The ICU had united themselves to form a rival administration to the Transitional Federal Government (TFG) of Somalia, and had succeeded in controlling most of southern Somalia and the vast majority of its population. Since ouster of the ICU from power, the United States has launched from its naval vessels at least four missile strikes in Somalia against Islamic leaders accused of being terrorists.69 (For example, one of the strikes targetted a Kenyan who is believed to have played a major role in the bombings of two US embassies in 64

Ibid. See Alissa Rubin/Sabrina Tavernise, Turkey’s Warplanes Attack Villages in Iraqi Kurdistan, N.Y. Times, 5 February 2008, A9; Joshua Partlow, Turkey Resumes Strikes in Iraq’s North, Wash. Post, 6 March 2008, A18. 66 See Sabrina Tavernise/Richard Oppel, After 8 Days, Turkey Pulls Its Troops Out of Iraq, N.Y. Times, 1 March 2008, A8. 67 See Joby Warrick/Robin Wright, Unilateral Strike Called a Model For US Operations in Pakistan, Wash. Post, 19 February 2008, A1. 68 See Eric Schmitt/David Sanger, Pakistan Shift Could Curtail Drone Strikes, N.Y. Times, 22 February 2008, A1; Robin Wright/Joby Warrick, US Steps Up Unilateral Strikes in Pakistan, Wash. Post, 27 March 2008, A1. 69 See Stephanie McCrummen, US Strike in Somalia Targets Terror Suspects, Wash. Post, 4 March 2008, A13. 65

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Africa in 1998.) The TFG reportedly has allowed the United States a free hand in undertaking such attacks though, since the TFG faces a widespread civil war, its ability to authorize external interference is open to question. – A classified 2005 US document concerning rules of engagement in Iraq envisaged the ability of US military forces to cross from Iraq into Iran, Syria or other countries bordering Iraq, even without those countries’ consent.70 Generally, such action was only authorized after securing approval from the US Secretary of Defense, which might entail obtaining Presidential approval. Yet according to the document, Secretary of Defense approval was not necessary in situations of hot pursuit from Iraq into Iran or Syria against former members of Saddam Hussein’s government and terrorists, or “when Syria or Iran cannot or will not prevent a hostile force from using their airspace, land territory, internal waters or territorial seas to attack US and/or designated forces and the hostile force constitutes an imminent threat to ongoing operations.71 – On 1 March 2008, Colombian military forces bombed and crossed into Ecuador to attack guerrillas of the Revolutionary Armed Forces of Colombia (FARC), who maintain camps along the border. Colombia regards the FARC as a terrorist and drug-trafficking organization, while some in the region see them as revolutionaries fighting a US-backed puppet government. Ecuador and Venezuela responded to the raid by sending troops to their borders with Colombia, while Nicaragua broke off diplomatic relations with Colombia.72 In this instance, neither the Security Council nor the General Assembly condemned that action. The Organization of American States, however, adopted a resolution declaring the Colombian raid to be a violation of Ecuador’s sovereignty, though stopping short of expressly condemning Colombia.73 70

US Rules of Engagement for Iraq, available at http://www.wikileaks.org/wiki/US_ Rules_of_Engagement_for_Iraq. 71 Ibid., para. 3(D)(1)(B). 72 See James McKinley, Jr., Nicaragua Breaks Ties With Bogotá, N. Y. Times, 7 March 2008, A6. 73 OAS CP/Res. 930 (1632/08), 5 March 2008. The resolution provided: Considering: That on the morning of Saturday, 1 March 2008, military forces and police personnel of Colombia entered the territory of Ecuador, in the province of Sucumbíos, without the express consent of the government of Ecuador to carry out an operation against members of an irregular group of the Revolutionary Armed Forces of Colombia who were clandestinely encamped on the Ecuadorian side of the border; that that act constitutes a violation of the sovereignty and territorial integrity of Ecuador and of principles of international law; …

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These examples indicate that many states are concerned about the legality of the cross-border uses of force against terrorist camps, but that condemnation on the basis of a legal violation is erratic, perhaps suggesting that a much more nuanced legal standard may be operating than is captured by the static jus ad bellum paradigm. On issues such as this, as time progresses, the static jus ad bellum position may become increasingly questioned and viewed as untenable or unconvincing. Hence, the argument against the status quo is that civilized societies can and should do better, at least if they aspire to the maintenance of international peace and security through predicable and transparent processes. As Secretary-General Kofi Annan stated in his 2005 report “In Larger Freedom,” an essential part of the consensus we must seek must be agreement on when and how force can be used to defend international peace and security. In recent years, this issue has deeply divided Member States. They have disagreed about whether States have the right to use military force pre-emptively, to defend themselves against imminent threats; whether they have the right to use it preventively to defend themselves against latent or non-imminent threats; and whether they have the right – or perhaps the obligation – to use it protectively to rescue the citizens of other States from genocide or comparable crimes. … Agreement must be reached on these questions if the United Nations is to be – as it was intended to be – a forum for resolving differences rather than a mere stage for acting them out.74

In the face of such uncertainty, consideration should be given to a formal reaffirmation of the static jus ad bellum position if that position truly reflects contemporary global expectations. By “reaffirmation” of the static jus ad bellum, I do not mean a statement of the kind that was issued at the 2005 World Summit. At that meeting, some 150 world leaders adopted a declaration that, among other things, reiterated “the obligation of all Member States to refrain in their international relations from the threat or use of force in any manner inconsistent with the Charter of the United Nations,”75 and reaffirmed “that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security.”76 Such a “reaffirmation” fails to grapple directly with differing interpretations of what the Charter actually requires – it simply papers over those differences. InResolves, 1. To reaffirm the principle that the territory of a state is inviolable and may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatsoever. … The United States was the only county in the Western Hemisphere expressly supporting the Colombian action, see Simon Romero, Regional Bloc Says Ecuador’s Sovereignty Was Violated, N.Y. Times, 6 March 2008, A3. 74 In Larger Freedom: Towards Development, Security, and Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005, 21 March 2005, paras. 122–23. 75 World Summit Outcome, UN Doc. A/60/L.1, 15 September 2005, para. 77. 76 Ibid., para. 79.

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stead, a true reaffirmation would specifically address how the jus ad bellum relates to contemporary threats. Alternatively, if contemporary global expectations diverge from the static position, then a recodification of the jus ad bellum may in order. By recodification, I mean a restatement of the rudimentary rules of the jus ad bellum in light of the wide range of threats that have already occurred and will continue to occur in the years to come. In essence, it would be an effort to engage in the same conversation today that occurred when the major powers at Dumbarton Oaks in 1944 drafted what became Article 2(4) and when the San Francisco conference adopted Article 51 in 1945. Trying to reaching a consensus either on a reaffirmation of the static jus ad bellum position or on a recodification of the changed jus ad bellum may well be politically infeasible, given the significance of the issue, the rhetorical posturing that governments engage in, the considerable divide between more powerful and less powerful states, and the potential for any process to be sidetracked by current events. Recent efforts by even non-governmental entities, such as the ICISS and the 2005 UN High-level Panel , have revealed the difficulties and controversy that any such effort will entail. Indeed, a credible argument might be made that the only point at which the jus ad bellum will be ripe for either reaffirmation or recodification is when it completely breaks down, ushering in a new era for rebuilding or strengthening international institutions. The ICISS’s “Responsibility to Protect” report candidly noted that “it would be impossible to find consensus, in the Commission’s view, around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General Assembly.”77 Indeed, perhaps the strongest argument for adhering to the status quo is not that the static jus ad bellum is a stable and intrinsically optimal regime, but that efforts to move to a more protean conception will be even more destabilizing, forcing states and non-state actors to confront a normative system over which they have fundamental disagreements. Deep schisms between powerful states and lesspowerful states, and even among close allies, may well be revealed and become more entrenched. The considerable difficulties that the NATO states encountered in identifying a legal theory justifying their actions to protect Kosovo provide a window on the problems that would be faced in either reaffirming or recodifying the jus ad bellum. Imagine the difficulty in securing agreement between the United States and the developing world about preemptive self-defense, or between France 77

Responsibility to Protect (note 41), para. 6.37.

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and China over humanitarian intervention, and the problem becomes manifest. As such, better to let sleeping dogs lie. Nevertheless, given that efforts like ICISS or the High Level Panel are already occurring, we may be entering a period where a reaffirmation or recodification of the jus ad bellum is viewed as politically feasible and desirable. While strong adherence to the core paradigm remains, powerful sentiments are emerging in favor of a more sophisticated normative system, driven by the rise of human rights, the threat of terrorism, and the fear of weapons of mass destruction. As these sentiments become more insistent, initiatives such as ICISS and the 2005 UN Highlevel Panel may prove to be just the first wave in efforts to revisit and reevaluate the jus ad bellum. Developing countries, faced with issues such as threats of nonproliferation, are acting in a manner that might not have been predicted even a few years ago.78 Notably, the International Criminal Court (ICC) Statute contemplates that the Court will exercise jurisdiction over the crime of aggression once the states parties adopt a provision at their review conference (scheduled for 2010) setting forth a definition of aggression and the conditions under which the Court could exercise its jurisdiction over it.79 At present, a special working group has been established by the ICC Assembly of State Parties toward that end, and may result in a formulation of aggression that reaffirms or recodifies the static jus ad bellum. Even if the ICC’s work essentially cross-references to the UN Charter, leaving current uncertainties intact, placing aggression within the scope of the ICC’s mandate may well galvanize states into a reaffirmation or recodification process, as a means of clarifying when government leaders may be exposed to charges of criminal conduct. Some states may resist reaching a consensus, but non-state actors may be powerful agitators for a consensus position to emerge. And while it often seems that certain hurdles in interstate relations are insurmountable, there are plenty of examples, even in recent years, of those hurdles being swept aside by powerful currents of history (the reunification of Germany, the demise of South African apartheid, or the establishment of an international criminal court come to mind). Defenders of static jus ad bellum might be correct that, notwithstanding all the new interstate influences since 1945, the prevailing view today is still in favor of a strictly interpreted jus ad bellum; but if that is true, perhaps the time has come to formally reaffirm it. If it is not true, then perhaps the time has come to recodify the 78 See, e.g., Tanya Ogilvie-White, International Responses to Iranian Nuclear Defiance: The Non-Aligned Movement and the Issue of Non-Compliance, EJIL 18 (2007), 453. 79 See Art. 5(2) Rome Statute of the International Criminal Court, 17 July 1998, UNTS, vol. 2187, 90.

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jus ad bellum so as to ensure its continuing relevance for interstate relations and to provide it with a stronger pedigree than currently exists.

II. Debating Reaffirmation or Recodification If maintaining the status quo is unstable, what directions should a contemporary debate over the jus ad bellum take? A starting point might be to approach the jus ad bellum more holistically than is usually the case. The standard approach in international legal analysis is to slice the jus ad bellum up into segments, in which consideration is given to issues such as rescue of nationals, humanitarian intervention, anticipatory self-defense, and so on. Within each segment, state practice is tallied up as showing either “legality” or “illegality” so as to reach a conclusion about the permissibility of using force in that particular context. Yet doing so is unsatisfactory, given that state practice tends to be spare, conflicting, and susceptible to alternative interpretations. If, instead, one were to step back from these segments so as to ask broader questions about when it is that the global community (however that might be defined) generally seems to favor uses of force, then the picture might become clearer. Certain general parameters would seem to be relatively accurate in helping to predict whether coercive behavior is acceptable, no matter the context in which it is deployed. Those parameters might concern: (1) the degree of coercion actually inflicted by State A upon State B or its nationals; (2) the gravity of coercion that State A fears from State B; (3) the extent to which other States are condoning State A’s coercion; (4) the pedigree of State B as a member of the international community; (5) the degree to which State A’s coercion is tailored to respond to the threat from State B; or (6) the degree to which State A’s coercion has adverse collateral consequences for other states or persons. Under such a holistic approach, one would not read the global response to the attacks of 9/11 as solely relevant to the issue of permissible uses of force against a non-state actor, although it is certainly relevant to that issue. Rather, one would apply the precedent more broadly as relevant to our understanding of how the jus ad bellum operates in various circumstances. In other words, the 9/11 precedent can shed light on: (1) what constitutes an armed attack?; (2) how immediate must a likely further attack be before a state can respond in self-defense?; (3) what level of collective support or endorsement is possible when embarking on an act of selfdefense?; (4) what kinds of delinquent acts might be held against a state from its past when considering its ability to invoke standard rights of sovereignty today

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under international law?; and (5) how does the gravity of the attack effect the scope of necessity and proportionality accorded to the defending state? A second beneficial direction might entail analyzing relevant norms or instruments that are not, strictly speaking, a part of the jus ad bellum, but that offer a window on contemporary community expectations. For example, in thinking through whether a state can engage in self-defense against a non-state actor who is believed to be acquiring weapons of mass destruction, it seems relevant to note that the Security Council in 2004 decided that all states must prohibit non-state actors in their territory from manufacturing or acquiring such weapons.80 Assuming that the resolution is within the power of the Security Council (some have claimed it to be ultra vires), then it seems highly relevant to the issue of the relationship of a state to non-state actors in its territory, and may serve to bridge whatever links of attribution are necessary to allow self-defense against that non-state actor. Similarly, one might consider how evolutions in the jus in bello over time might be affecting the jus ad bellum. The 2006 US Supreme Court case Hamdan v. Rumsfeld81 reached the conclusion that when common Article 3 refers to an armed conflict that is not international in nature, that includes the conflict between the United States and al Qaeda. One can argue about whether that was the right conclusion: (1) on the one hand, according certain minimal protections to the Guantanomo detainees using common Article 3 and Protocol I Article 75 seems like a good thing; (2) on the other hand, Common Article 3 was probably intended only to address internal armed conflict, not transnational armed conflict involving a state and a nonstate actor. The point, however, is that if the Hamdan court is right – or even if we set aside the Hamdan decision and simply consider the protections that exist in common Article 3 and Protocol II for non-state actors – one arrives at a place where the jus in bello is trying to take account of and regulate activities relating to non-state actors. Should not the jus ad bellum do so as well? In an essay of this length, a standard ploy might be to plead that there is not enough time to actually craft a proposed reaffirmation or recodification but, as a starting point, one could imagine the following as possible starting points: Reaffirmation of Static Jus ad Bellum 1. The use or threat of use of armed force by one state against another state is prohibited in all circumstances unless: 80 SC Res. 1540, para. 2, 28 April 2004; for commentary, see Daniel H. Joyner, NonProliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council, Leiden Journal of International Law 20 (2007), 489. 81 548 US 557, 2006.

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a) taken in response to a prior armed attack by another state until the Security Council has taken the measures necessary to maintain international peace and security; or b) authorized by the Security Council as a means of addressing, under Chapter VII of the Charter, a threat to the peace, breach of the peace, or act of aggression. 2. Measures taken in the exercise of the right of self-defense shall be immediately reported to the Security Council. 3. All uses of armed force must be necessary and proportionate in relation to the threat that has arisen and must be undertaken in accordance with applicable international humanitarian law. Recodification of Protean Jus ad Bellum 1. The use or threat of use of armed force by one state against another state is prohibited unless undertaken in accordance with paragraphs (2)–(6). 2. The Security Council may authorize the use of armed force by a state as a means of addressing, under Chapter VII of the Charter, a threat to the peace, breach of the peace, or act of aggression. 3. A state may use or threaten to use armed force against another state in response to an actual or imminent armed attack by that other state, including an attack in the form of the seizure of nationals, until the Security Council has taken the measures necessary to maintain international peace and security. 4. A state may use or threaten to use armed force against another state in response to an actual or imminent widespread deprivation of fundamental human rights, after notification to and debate of the matter at the Security Council, until the Security Council has taken the measures necessary to maintain international peace and security. To the extent possible, such action shall be taken through regional or sub-regional organizations. 5. States may use or threaten to use armed force against a non-state actor located in another state in the circumstances set forth in (3), but only if the other state has been provided a reasonable opportunity to address the matter directly, and has either refused to do so or is incapable of doing so. 6. Measures taken under (3), (4), or (5) shall be immediately reported to the Security Council. 7. All uses of armed force must be necessary and proportionate in relation to the threat that has arisen and must be undertaken in accordance with applicable international humanitarian law.

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Obviously, certain normative choices have been made in the proposed reaffirmation and proposed recodification, placing them at somewhat opposite ends of a potential spectrum of options. Further, the proposals above largely remain captured by the subject matter divisions in possible uses of force, rather than utilizing some of the more abstract (and perhaps controversial) factors suggested previously in this section. Nevertheless, these proposals may serve as a starting point for achieving a consensus on the contemporary preferences of states or non-state actors regarding the jus ad bellum.

III. The Means of a Reaffirmation or Recodification The political feasibility of reaffirming or recodifying the jus ad bellum would turn on addressing not just the substance of the law but the means for establishing that substance. The most formal means of change, amendment of the Charter, is the least likely path to success, while the least formal change, through statements of non-governmental actors, may attract insufficient state adherence to be effective. Various possibilities exist that will no doubt be explored, to one degree or another, in the years to come. Through Amendment of Charter: Though the Charter can be amended, the process for doing so is cumbersome, requiring a vote of two thirds of the members of the General Assembly and then ratification by two thirds of the UN members, including all the permanent members of the Security Council.82 Successful amendments have only occurred five times, all on issues relating to the increase in the size of the UN membership, not as a means of altering the substantive rights and obligations set forth in the Charter. Hence, the procedural hurdles of this process are quite significant and, absent tectonic shifts in geopolitics, likely insurmountable. Through UN General Assembly Resolution: Technically, the General Assembly has no express power to issue a resolution binding upon all states as to the meaning of Articles 2(4) and 51. Nevertheless, the travaux preparatoires of the Charter, and the jurisprudence of the International Court, have recognized the competence of organs of the United Nations, in the first instance, to interpret provisions of the Charter relevant to their work. Though the Security Council is the principal UN organ for addressing peace and security, it is

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Art. 108 UN Charter.

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not the exclusive authority, leaving to the General Assembly an important and relevant role.83 Further, since the General Assembly has within it representation of all states, resolutions that it adopts by consensus or by overwhelming majority that purport to recognize existing norms of international law can be highly authoritative evidence that such law exists. With respect to the jus ad bellum, the General Assembly has previously played a role through its adoption of various resolutions, including its resolutions on friendly relations84 and, as previously noted, on aggression, and remains available to do so today, as evidenced by the 2005 World Summit Outcome document. The problem with this venue is that the General Assembly has not proven to be a particularly effective body for engaging in sophisticated brokering of views between states over contentious issues. The political dynamics within the Assembly tends to drive toward an outcome that either only reflects the largest bloc of non-aligned states or that represents a consensus view concerning text that has little meaning. Whether a global parliament85 based on popular representation, rather than on representation of states, would avoid such pitfalls is unclear, but if one were to emerge it, too, could be a potential venue. Through UN Security Council Resolution: This option may represent the most intriguing possibility, given the increased activity of the Security Council in the post-Cold War era, the power of the Security Council to issue decisions that bind all UN members, and the Council’s willingness to engage in “legislative-type” resolutions on fundamental security issues, such as controls on terrorist financing and proliferation of weapons of mass destruction.86 At present there seems to be little P-5 agreement on a recodification of the jus ad bellum, but there are emerging areas of common interest (e.g., the ability to strike at terrorist havens) and it not beyond imagination that at some point a political alignment would occur to issue a resolution that “clarifies” the meaning of the jus ad bellum.

83

See Advisory Opinion on Certain Expenses of the United Nations, ICJ Reports 1962,

151. 84 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970. 85 See, e.g., Richard Falk/Andrew Strauss, Toward Global Parliament, Foreign Affairs 80 (Jan/Feb 2001), 212. 86 See SC Res. 1373, 28 September 2001; SC Res. 1540, 28 April 2004.

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Through Major Power Agreement: If reaching agreement within the major political institutions is difficult, another path would be for the major powers to reach agreement on instances when they favor or at least will not oppose uses of military force, as well as on those circumstances where they will oppose the use of force. The composition of this group might include the P-5 and other states, or might be more oriented toward North American and West European states. Any product from such a group by itself would be nonbinding, but it would help illuminate the beliefs of those states who are most likely to deploy military force. Other states could react to whatever declaration emerges from this process, providing a basis for identifying areas of agreement and disagreement. Through Case Law: At least within international legal circles, there is an acceptance that the decisions of the International Court of Justice and other competent international courts carry considerable weight in identifying international law, including changes that have occurred in the law. To the extent that the jus ad bellum requires reaffirmation or recodification, which cannot be secured through political organs of the United Nations, then perhaps international courts are the place to look. Arguably reaffirmation is exactly what the International Court has done in its jurisprudence; its decision in the Oil Platforms case87 might best be understood as confirming the static jus ad bellum and eschewing any explicit, significant new contribution to the notion of self-defence.88 One problem with reliance on case law, however, is that the cases are extremely sparse and often present anomalous factual scenarios that are not easily or convincingly extrapolated to broader statements about the meaning of the jus ad bellum. Indeed, given the importance of the subject, it is rather remarkable that the International Court went for fifty years having only squarely addressed the jus ad bellum in one case (the Nicaragua case). In the post-Cold War era, there has been a somewhat greater willingness for cases to be brought to the Court and for the Court to address, on the merits, matters related to the jus ad bellum. Yet even so, cases such as the 1996 Advisory Opinion on the Legality of Nuclear Weapons,89

87

Oil Platforms (Iran v. US), ICJ Reports 2003, 161. See Natalia Ochoa-Ruiz/Esther Salamanca-Aguado, Exploring the Limits of International Law Relating to the Use of Force in Self-Defence, EJIL 16 (2005), 499. 89 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226. 88

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the 1998 Spain/Canada Fisheries Jurisdiction case90 (which provided the Court an opportunity to opine on what sort of coercion does not squarely fall within Article 2(4) of the Charter), the 2003 Iranian Oil Platforms judgment, 2004 Advisory Opinion on the Israeli Wall,91 and the 2005 Congo/Uganda Armed Activities case,92 have left many questions unanswered about the contours of the jus ad bellum. Perhaps to fill the gap, other tribunals are joining in as well. In December 2005, the Eritrea Ethiopia Claims Commission found that Eritrea violated UN Charter Article 2(4) by invading and occupying parts of Ethiopia or Ethiopianadministered territory in May 1998.93 In September 2007, an arbitral panel convened under the Law of the Sea Convention found a violation of Article 2(4), this time in the form of a threat to use force by a Surinamese patrol boat against an oil rig.94 Yet these tribunals too have been fairly cautious and sometimes cursory in their treatment of the law. Broadly speaking, courts and tribunals have done little to advance understandings about whether and how to adapt the jus ad bellum to contemporary threats or crises, with the most notable example perhaps being the International Court’s cursory treatment of the issue of attacks by non-state actors in the Israeli Wall advisory opinion. While a general advisory opinion might be sought from the International Court of Justice on the scope of contemporary jus ad bellum, it seems likely that the Court would be extremely cautious in issuing such an opinion, uncertain how its views might be received by states, and reluctant to provide more than the most general of views. Perhaps it is simply too much to expect international courts to lead the way in this area. Through “Principles” Adopted by Non-State Actors: Considerable international legal scholarship in recent years has focused on the rise of the non-state actor as a critical feature of the ways in which international law is created, interpreted, and even enforced.95 Epistemic communities operating

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Fisheries Jurisdiction (Spain v. Can.), ICJ Reports 1998, 432. See supra note 51. 92 See supra note 54. 93 Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, Ethiopia’s Claims 1–8, 19 December 2005, dispositif, para. B. 1., reprinted in: International Legal Material 45 (2006), 430. 94 Award of the Arbitral Tribunal (Guyana v. Suriname), 17 September 2007, para. 445. The oil rig had been authorized by Guyana to engage in exploratory drilling on a part of the continental shelf in dispute between the two states. 95 See Alan Boyle/Christine Chinkin, The Making of International Law, 2007, 41–97. 91

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across boundaries are doing much to galvanize public opinion on key issues of transnational law, which in turn influences the ways states conduct themselves. As the work of the ICISS and the 2005 UN High-level Panel show, there are roles that can be played by non-governmental organizations or expert groups in attempting to articulate and clarify the central norms of the jus ad bellum. The work product of such initiatives is not regarded as binding upon states, and hence may not be effective, but it can be the starting point for a process that flowers into a formal arrangement, as may been seen in initiatives ranging from the regulation of land mines to the establishment of the International Criminal Court.96

E. Conclusion While the jus ad bellum has a hardened normative core that is widely accepted by states, there appears to be considerably less consensus around the margins of the norm, with its application changing considerably based on the context in which the norm is being applied. In this sense, the jus ad bellum has a much more protean nature than is commonly recognized by states and non-state actors. The traditional approach of seeing uses of force as being lawful/unlawful base solely on whether they are taken in self-defense against a prior armed attack, or with Security Council authorization, increasingly seems unconvincing or, at a minimum, a poor predictor of the likely response of the global community. That does not mean that the jus ad bellum has no part to play on the margins; it retains an important role in conditioning global conduct and reactions to that conduct, but that role may increasingly diminish in the years to come. Three options present themselves. States and non-state actors can continue to operate under the current system, which tends to view the jus ad bellum as a static law unchanged since 1945. Strong reasons support this option, including the claim that the current system is reasonably stable and could be significantly destabilized by moving to a different position. Alternatively, if the existing system is not stable or will become unstable over time, and if that instability is partly due to a belief in some quarters that times have changed since adoption of the original Charter paradigm, then states and non-state actors could seek to reaffirm the static jus ad bellum, if that remains the consensus position. Finally, if the status quo is untenable, 96 See José E. Alvarez, International Organizations as Law-makers, 2005, 284: “Certain structural aspects of IOs, including provision for access to documents and for ‘observer’ or other forms of non-voting status, have provided entry points for NGOs’ growing participation in various forms of interstate diplomacy, including treaty-making.”

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and there is no consensus on the static view, then states and non-state actors might do well to seek consensus on a recodification of the jus ad bellum to reflect its protean nature. A formal reaffirmation or recodification in the near-term may be politically infeasible, but various factors may push the global community in that direction in the years to come. Even short of developing a new global consensus, for the jus ad bellum to retain a vibrant, authoritative role in interstate relations, it likely needs to find ways to accommodate new threats to the global order, through more refined decisions of international courts, more sophisticated approaches to international treaties and UN resolutions, and sharper analysis in the academy.

The International Community’s “Responsibility to Protect” Populations from War Crimes and Other International Crimes By Christine Gray The “responsibility to protect” was identified in 2001 in the seminal Canadian report by the International Commission on Intervention and State Sovereignty. It was then taken up by the High-level Panel on Threats, Challenges and Change,1 welcomed by the UN Secretary-General in his report “In larger freedom,”2 and finally included in the UN World Summit Outcome Document in 2005.3 This was hailed by the UN Secretary-General as a major achievement of the World Summit, but there is some room for doubt as to its legal and practical significance.4 It may be that the failure of the World Summit to reach agreement on disarmament, on specific proposals on climate change and development aid, and on reform of the Security Council, led to excessive enthusiasm for the responsibility to protect.5 Nevertheless it is clear that the concept of “responsibility to protect” proved rather more attractive to states than had the divisive doctrine of “humanitarian intervention.” Responsibility to protect turned out to be acceptable even to those states which had consistently opposed humanitarian intervention: the World Summit Outcome Document was adopted by consensus. However, it left open the fundamental question whether military intervention in furtherance of responsibility to protect could be exercised only by the UN Security Council, or whether unilateral action was lawful when a state failed to exercise its own primary responsibility to its own people. Many states have gone out of their way to register their continued 1

A More Secure World: Our Shared Responsibility (2004), UN document A/59/565, paras. 199–203. 2 In larger freedom: towards development, security and human rights for all, UN document A/59/2005, paras. 132–135. 3 UN document A/60/ L.70, paras. 138–139. 4 K. Stahn, Responsibility to Protect?, American Journal of International Law (AJIL) 101 (2007), 99. 5 See C. Gray, A crisis of legitimacy for the UN collective security system, International and Comparative Law Quarterly (ICLQ) 56 (2007), 157.

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opposition to any unilateral action. The Non-Aligned Movement has repeated its opposition at every opportunity, fearing that the unilateral invocation of the responsibility to protect could serve as a pretext for intervention by powerful states.6

A. The Threshold for Intervention For those who support the responsibility to protect one of the key questions is the threshold for military intervention. I have been asked to write on the responsibility to protect populations from war crimes and other international crimes; this focus is especially appropriate given that this conference is being held in Kiel to commemorate the centenary of the 1907 Hague Conventions. Although these Conventions did not actually provide for war crimes or create mechanisms for the enforcement of the laws of war, they marked a crucial stage in the development of customary international law which has subsequently formed the basis for the establishment of the international criminal responsibility of individuals. Here some aspects of the question whether responsibility to protect can play any role in regard to the prevention of war crimes and in providing an effective response to such crimes will be considered. The World Summit Outcome Document – in asserting the responsibility to protect, first of states with regard to their own populations, and then of the international community acting through the Security Council under Chapter VII – asserts the responsibility to protect populations in cases of “genocide, war crimes, ethnic cleansing and crimes against humanity.” That is, the threshold for action is described in terms of the commission of international crimes. The responsibility to protect is included in Section IV of the Outcome Document, on “Human Rights and the Rule of Law.” The criteria listed in the World Summit Outcome Document are similar, but not identical, to the list of crimes over which the International Criminal Court has jurisdiction under Article 5 of its Statute. The difference lies in the Outcome Document’s omission of aggression and in its specific mention of ethnic cleansing, an apparent reflection of the importance of the tragedies of Bosnia-Herzegovina and Rwanda in the development of the idea of responsibility to protect.7

6

O. Corten, Le droit contre la guerre, 2008, 765. The African Union (AU) had earlier, and somewhat controversially, asserted a right of intervention in the 2002 AU Constitutive Act, Article 4(h), in cases of “war crimes, genocide and crimes against humanity.” There is debate as to whether this is consistent with the UN Charter; it may be that the treaty provision constitutes consent legitimating intervention in the states parties. 7

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Moreover, when the UN Security Council reaffirmed the responsibility to protect contained in the World Summit Outcome Document in Resolution 1674 (2006), drafted and negotiated though the Security Council by the UK,8 it did so in the context of the protection of civilians in armed conflict, that is, of possible war crimes and crimes against humanity. The Security Council “recalled that deliberately targeting civilians and other protected persons as such in situations of armed conflict is a flagrant breach of International Humanitarian Law.” It also reaffirmed its condemnation of all acts of violence or abuses committed against civilians in situations of armed conflict in violation of applicable international obligations with respect in particular to torture, gender-based and sexual violence, violence against children, the recruitment and use of child soldiers, trafficking in humans, forced displacement, and the intentional denial of humanitarian assistance. The UK subsequently “worked to embed the Responsibility to Protect commitment in relevant, country-specific Security Council resolutions.”9 Resolutions 1706 (2006), 1755 (2007), 1784 (2007) on Sudan all make references to the responsibility to protect provisions of the World Summit Outcome Document. The resolutions make no reference to specific international crimes, but they do refer to the duty not to attack civilians in armed conflict. Slightly different language had been used in the earlier High-level Panel Report “A More Secure World,” in its proposal of the responsibility to protect. This said that the responsibility arose in case of “genocide and other large-scale killing, ethnic cleansing or serious violation of international humanitarian law.”10 This is narrower than the list in the World Summit Outcome Document in that there is no express reference in this list to crimes against humanity, but possibly wider in that “serious violations of international humanitarian law” may arguably be a wider category than war crimes. The High-level Panel included responsibility to protect in Section IX on “Using force: rules and guidelines,” under the subheading “Chapter VII of the Charter of the United Nations, internal threats and the responsibility to protect.” The Secretary-General’s Report “In larger freedom” (2005), produced in response to the High-level Panel, was less specific on the responsibility to protect: he said that we should move to embrace and act on it to protect potential or actual victims of massive atrocities.11 However, it is significant that the Secretary-Gen8 Third Report from the UK Foreign Affairs Committee, Session 2006–2007, Annual Report on Human Rights 2006, Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 7127, para. 18. 9 Ibid., para. 19. 10 High-level Panel Report (note 1), paras. 199–203 (emphasis by the author). 11 In larger freedom (note 2), paras. 132–135.

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eral included this not in the section on the use of force, but rather in Section IV on “Freedom to live in dignity” which covers the rule of law, human rights and democracy. This focus on the rule of law in the Secretary-General’s report and in the World Summit Outcome Document proposals for a responsibility to protect has attracted relatively little attention in the literature on humanitarian intervention and the responsibility to protect. It is, however, especially appropriate to stress this here because this conference has been organized by the Walther Schücking Institute; and the rule of law was one of the main themes of Walther Schücking’s work.12 In contrast to the rule of law approach adopted in the recent reports listed above, early work on the responsibility to protect had taken a different approach. There is a marked contrast between the World Summit Outcome document and the seminal 2001 Canadian report “Responsibility to Protect” in this regard. The difference lies in the Canadian Commission’s “just cause” threshold: the focus of the Canadian Commission was on the type of harm to be avoided, not on the prevention of particular crimes. It said that the responsibility to protect arose in cases of (a) large scale loss of life, actual or apprehended which was the result of deliberate state action or state neglect or inability to act; (b) large scale ethnic cleansing, by killing, expulsion, acts of terror or rape. Although the substance may be similar, the language used to establish the threshold for intervention employs different legal concepts.

B. The UK Approach to the Threshold for Military Intervention Perhaps a particular examination of the approach of the UK may be permissible, given that it was arguably the first state expressly to invoke a doctrine of humanitarian intervention to justify its use of force in post World War II practice. It has subsequently devoted continued efforts to develop the doctrine. The UK initially supported the use of force to prevent overwhelming humanitarian catastrophe in the context of the controversial no-fly zones over Iraq in “situations of extreme humanitarian distress.”13 In its early attempts to explain its thinking on what it said was an “emerging right,” it deliberately did not specify the threshold for intervention with more precision. In 1992, when the UK Foreign Affairs Committee asked the govern12 See J. Delbrück, Walther Schücking’s Contribution to the International Rule of Law, in this volume. 13 UK Materials on International Law, The British Year Book of International Law (BYIL) 63 (1992), 824–828.

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ment “What criteria does the government employ in assessing whether the level of suffering caused by a man-made disaster is such as to justify intervention in a sovereign state?” it replied, “We do not have a formal set of criteria to apply in assessing whether or not the level of suffering in a particular emergency justifies intervention for humanitarian purposes … It would be wrong to try to set parameters for human suffering. The application of a set of criteria would inhibit the decision making process and limit the flexibility of our response. We firmly believe that the nature of the response should be matched to the scale of the problem. It was on this basis that we deployed troops to Northern Iraq last year …”14 But later the UK did attempt to develop such criteria. It has been far from consistent in its approach to this difficult issue. First, in his 1999 Chicago speech Prime Minister Blair has developed a new doctrine of “international community” and supported an approach of liberal interventionism.15 But he did not focus on the issue of the appropriate threshold for military intervention, giving it only some passing discussion. He said that acts of genocide were not an internal matter; also when oppression produces massive flows of refugees which unsettle neighboring countries and are threats to international peace and security these are not internal matters. “In an increasingly interdependent world our self-interest was allied to the interests of others and seldom did a conflict in one region of the world not contaminate another.”16 But he did not give any more precise consideration to the threshold for intervention. Foreign Secretary Jack Straw returned to the issue in 2000 and attempted to draw up guidelines for the use of force. He set the threshold that there should be “convincing evidence of overwhelming humanitarian distress on a large scale requiring urgent relief.”17 But the UK’s draft guidelines were not accepted by other states and were not taken further at the time. Accordingly in 2001 the UK proposed a set of policy guidelines for the Security Council, rather than for unilateral intervention: in this case the threshold was prescribed in rule of law terms: military action would be justified in cases of massive violations of International Humanitarian Law and crimes against humanity that threaten international peace and secu-

14

Id., 826. Speech delivered 23 April 1999, available on the 10 Downing Street website in the Tony Blair Archive, http://www.pm.gov.uk/output/Page1297.asp. 16 Speech on the threat of global terrorism delivered 5 March 2004, available on the Downing Street website in the Tony Blair Archive, http://www.number10.gov.uk/Page 5416. 17 Guiding Humanitarian Intervention, 19 July 2000, UK Materials on International Law, BYIL 71 (2000), 646. 15

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rity.18 In contrast, in 2003 the Foreign Secretary’s response when asked about guidelines for the international community in cases when the Security Council was not willing to intervene was to propose a “set of pragmatic understandings.” The Foreign Secretary said “Action should be taken only to prevent genocide or major loss of civilian life that could destabilize other states and threaten international peace and security.” Also there must be a pragmatic element: the scale of actual or potential human suffering must justify the risks and dangers of military action. The focus here is once again on harm.19 Prime Minister Blair returned to the subject in his 2004 Sedgefield speech, a discursive and somewhat confusing speech, bringing together many different issues. He linked humanitarian intervention with the use of force against Iraq, the threat from terrorists and from weapons of mass destruction. He made the surprising statement that “[i]t may well be that under international law as presently constituted, a regime can systematically brutalize and oppress its people and there is nothing anyone can do, when dialogue, diplomacy and even sanctions fail, unless it comes within the definition of a humanitarian catastrophe … This may be the law, but should it be?”20 This is not an accurate statement of the existing law; in particular there is no recognition here of the role of UN. The Prime Minister’s focus was clearly on unilateral rather than Security Council action. Most recently the Foreign Secretary David Miliband repeated the UK commitment to military action. He said that “[i]n extreme cases the failure of states to exercise their responsibility to protect their own civilians from genocide or ethnic cleansing warrant military intervention on humanitarian grounds.”21 And the first “National Security Strategy of the UK” issued in March 2008 confirmed the UK’s commitment to the “Responsibility to Protect.”22 It could be argued that the rule of law focus, which justifies military intervention in cases of war crimes and other international crimes, avoids some of the problems which arise if the test adopted is that of the seriousness of the harm being done or threatened. This is because if the threshold is based on the rule of law and the prevention of international crimes, then one of the difficult questions

18

UK Materials on International Law, BYIL 72 (2001), 694, 695. UK Materials on International Law, BYIL 74 (2003), 817. 20 Speech delivered on 5 March 2004, available on the 10 Downing Street website in the Tony Blair Archive, http://www.pm.gov.uk/output/Page5461.asp. 21 Speech on the Democratic Imperative, delivered on 12 February 2008, available at http://www.fco.gov.uk.en/newsroom/latest-news/?view=Speech&id=3818797. 22 Cm 7291, March 2008, para. 4.75, available at http://interactive.cabinetoffice.gov.uk/ documents/security/national_security_strategy.pdf. 19

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facing those who argue that law should reflect morality in this context could be avoided. Many have written on this question.23 Recently there has been an interesting article by Janse, inspired by those who argued that the NATO use of force over Kosovo in 1999 was unlawful but legitimate. Janse made out the case that if it is desirable that legal rules should be consistent with morality then there is no convincing justification for taking a narrow view of the right of intervention; the use of force should not be limited to violations of fundamental human rights.24 But if a rule of law approach based on response to international crimes is taken, it is easier to avoid this difficult issue of the scope of any moral right or duty to intervene, and also to avoid related problems such as why there should be a duty to intervene in the case of harm inflicted or tolerated by a government, but not in cases of natural or economic disaster. This issue is currently before the International Law Commission in its new topic “Protection of persons in the event of disaster” under Special Rapporteur Valencia-Ospina.

C. Characterization of International Crimes The focus on the rule of law and the choice of the international crimes threshold in the World Summit Outcome document does, however, raise issues of characterization. Who is to decide whether particular actions count as “war crimes” or other international crimes? What sort of process is involved? Does the Security Council have any special role here? It has passed nearly 500 resolutions on international humanitarian law.25 About sixty of these determined that there had been violations of international humanitarian law, deplored and condemned violations of international humanitarian law, or demanded a halt to the violations. Some resolutions recognize that serious violations of international humanitarian law entail individual international criminal responsibility; the Security Council has also urged the investigation and prosecution of violations of international humanitarian law.

23

See, e.g., F. R. Teson, Humanitarian Intervention: An Inquiry into law and Morality, 2nd ed. 1997; N. Krisch, Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo, European Journal of International Law 13 (2002), 323. 24 R. Janse, The Legitimacy of Humanitarian Interventions, Leiden Journal of International Law 19 (2006), 669. 25 K. Okimoto, The Distinction and Relationship between Jus ad Bellum and Ius in Bello, PhD thesis, University of Cambridge, 2007, 59, 66.

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D. Darfur and the Responsibility to Protect These issues of the classification of international crimes and of the authority to characterize arose with regard to Darfur, and may be seen in the prolonged consideration as to whether the actions there constituted genocide. The humanitarian disaster in Darfur dates back to the start of 2003 when conflict broke out between rebels and government forces. The Sudanese government turned to local ArabAfrican militias, generally known as the janjaweed, to repress the insurgency; it also carried out air-bombardment of the region. The conflict has led to a quarter of a million deaths and displacement of about one third of the total population of the Darfur region.26 The Security Council established a Commission of Inquiry under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide to investigate reports of violations of international humanitarian law, and to determine whether acts of genocide had been committed.27 The Commission’s Report concluded that the government had not pursued a policy of genocide, but that grave breaches such as crimes against humanity and war crimes had been committed.28 The Security Council then referred the situation in Darfur to the International Criminal Court in Resolution 1593 (2005).29 The Prosecutor of the International Criminal Court opened an investigation and made a series of reports to the Security Council. He left open the question of the characterization of the offences. Moreover, the experience of Darfur since 2003 shows vividly that the recent adoption of the responsibility to protect in the World Summit Outcome document and in the resolutions of the Security Council may have raised expectations that cannot be met in practice. This is an extreme case of humanitarian distress, and of alleged international crimes, but military intervention by the UN proved impossible until the end of 2007. The UN Secretary-General repeatedly called for action; the Security Council invoked the responsibility to protect. The UK has claimed that “[i]n practice, the international community is implementing Responsibility to Protect by taking collective action through UN bodies and missions in response to the unacceptable situation in Darfur. Many of these actions carry the spirit of the Responsibility to Protect, if not always the label.”30 26

See Report of the Secretary-General, UN document S/2004/703, 30 August 2004, and his many later reports. 27 SC Res 1564 (2004). 28 http://www.un.org/News/dh/sudan/com_inq_darfur.pdf, 25 January 2005. 29 See M. Happold, Darfur, The Security Council and the International Criminal Court, ICLQ 55 (2006), 226. 30 Third Report from the UK Foreign Affairs Committee, Session 2006–2007, Annual Report on Human Rights 2006, Response of the Secretary of State for Foreign and Com-

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However, the UN and the AU were willing to send in troops only with the consent of Sudan. The government of Sudan resisted the deployment of a UN force for many years, claiming that it was a pretext for intervention and for the re-colonization of Sudan. It accused the UN of bias because of its imposition of sanctions on the government and its failure to take comparable action against the rebels.31 Accordingly it was initially an AU force which was deployed in Sudan, with the approval of the UN Security Council and on the basis of the consent of the government. This was a relatively small force, not adequately equipped to be effective in establishing security in the region.32 The government finally agreed to the establishment of a hybrid UN/AU force in June 2007, but the force set up under Security Council Resolution 1769 (2007) was not deployed until the end of the year. The situation on the ground is still not promising. Violence continues and the massive displacement of civilians has not been remedied. The hybrid UN/AU force has run into serious difficulties. As is common with UN forces in Africa, there have been delays in deployment and the force is seriously under-resourced.33 Most recently the Assistant Secretary-General for Peacekeeping reported that there had been violent outbreaks of fighting in West Darfur. Negotiations were required to bring the crisis to an end, but the Government was intent on military action and the rebels were either fighting or fragmenting so it was difficult to see an opening for political negotiations. The government had the primary responsibility to protect civilians, but UNAMID had a strong complementary mandate. However, it would not be in a position to comprehensively implement it until a critical mass of properly trained and equipped new troops and enabling assets were in place.34 At the start of March 2008 UNAMID’s strength was still only 9,000 armed forces, about half its authorized strength, and the force lacked the helicopters crucial to the performance of its mandate.35 In this case the government of Sudan had insisted that UNAMID should be a “predominantly African” force, and the Security Council accepted this in Resolution 1769 (2007). Developed states have provided some financial support for the operation; the US has offered $100 million to the African troop-contributing

monwealth Affairs, Cm 7127, para. 21, available at http://www.fco.gov.uk/resources/en/ pdf/pdf18/fco_facreporthumanrightsresopnse. 31 SC 5462nd, 5520th, 5528th, 5571st meetings, 2006, 5706th meeting, 2007. 32 Reports of the Secretary-General S/2006/591 at para. 41; S/2007/104 at para. 13. 33 Report of Under-Secretary-General for Peacekeeping Operations, SC 5832nd meeting, 2008; Report of the Secretary-General, S/2008/249. 34 SC 5849th meeting, 2008. 35 Report of the Secretary-General, S/2008/249.

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countries.36 But states were not willing to supply the helicopters necessary for the effective implementation of UNAMID’s mandate. In Darfur, as in many other places, military intervention without the cooperation of the government is not a realistic option. The responsibility to protect can only be implemented through negotiation.

E. The Duties of UN Member States under the Responsibility to Protect The Darfur situation also raises the question what duties the responsibility to protect through the UN imposes on member states. In a situation where there have been war crimes: does this impose an extra duty to provide troops and equipment for UN peacekeeping action? For example, the prolonged and destructive conflict in the Democratic Republic of Congo (DRC) has involved widespread war crimes and crimes against humanity. The President of the DRC referred the situation of crimes committed within the DRC to the International Criminal Court.37 Despite the successful holding of elections in 2006 and the general improvement in security, the situation in the east of the state is still extremely violent and dangerous.38 The UN has found it difficult to secure adequate troops and resources to carry out the mandates assigned to MONUC, the largest UN peacekeeping operation, by the Security Council.39 Developed states are typically more willing to vote for the deployment of a force than to supply the necessary troops and resources. The pattern of the involvement of developed states in Africa has been that they have been willing to take part in Chapter VII operations or to provide assistance to particular governments, but not to supply troops for UN peacekeeping.40 This may be seen most recently in the involvement of France in Cote d’Ivoire, through a separate force authorized by the Security Council under Chapter VII, not as part of the UN force, UNOCI.41 Similarly, the force recently established in Chad and the Central African Republic combines a French-led EU force created under Chapter VII and a UN police force.42 In general, developed states may make financial and logistical 36

UN Press Release SG/SM/11454, 6 March 2008. 19 April 2004, ICC-OTP-20040419-50-En. 38 Reports of the Secretary-General, S/2007/671, S/2008/218. 39 C. Gray, International Law and the Use of Force, 2004, 247. 40 See C. Gray, Peacekeeping and enforcement action in Africa: the role of Europe and the obligations of multilateralism, Review of International Studies 31 (2005), 207. 41 SC Res 1464 (2003); 1528 (2004). 42 SC Res 1778 (2007). Chad, like Sudan, was not willing to accept a UN force with Chapter VII powers. 37

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contributions to UN operations, but they do not submit their own troops to UN command in Africa.

F. Decision Making on Military Action through the UN Security Council The responsibility to protect also raises questions as to how the Security Council is to decide when to take action or to pass resolutions in response to war crimes and other international crimes. The Security Council is necessarily selective in its approach. Is it possible to ensure principled decision making? This question has received much attention since the end of the Cold War. The High-level Panel set out five criteria of legitimacy to govern all Security Council decision making on the use of force.43 These seem to have been drawn up with special regard to the responsibility to protect. The criteria are as follows: is there a serious threat? In internal conflicts this might arise in cases of genocide or other large-scale killing, ethnic cleansing or serious violations of international humanitarian law. The force must be used for a proper purpose, as a last resort, involve proportionate means and military force must be likely to have better results than inaction. The UN Secretary-General supported the adoption of these criteria.44 But the World Summit did not include these criteria for Security Council decision making in its Outcome Document. There had been some strong support for these High-level Panel criteria, notably from Canada which said that they would increase the authority, efficiency and transparency of the Security Council decision making on the use of force.45 But some states were less enthusiastic. They said that the problem was not that the Security Council had been accused of excessive use of force, but that it had not used force when it was necessary. And other states were sceptical on diametrically contrasting grounds. Some such as Uruguay argued that these principles might limit the use of force; others such as Pakistan said that this approach would endorse the concentration of authority in the Security Council. The purposes of the UN were to prevent, not to facilitate the use of force and military intervention. These criteria for the use of force were subjective and could be misused by powerful states against weaker states. Iran said that they would broaden the licence for coercion. A more fundamental criticism came from India which argued that the fundamental problem was the lack of legitimacy of the Security Council; this meant that princi43 44 45

A More Secure World (note 1), paras. 204–209. In larger freedom (note 2), para. 126. UN Press Releases GA/10337-9.

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pled decision making was not possible. It could be argued that the divisions between states as to the use of force in Kosovo or Darfur show clearly that the five criteria are unavoidably subjective.

G. Action on Behalf of the International Community? As was mentioned above, there are still divisions between commentators as to whether the responsibility to protect has to be implemented through the UN. Can a state act unilaterally to carry out the will of the international community if the Security Council does not act? The Canadian report examined the issue as to whether it was possible or desirable to get round the veto of a permanent member where there was a majority on the Security Council in favor of intervention. It discussed the development of a doctrine that where there was an unreasonable veto or threat of veto then the veto should be discounted, allowing individual states to take action.46 This was a popular topic in the lead-up to NATO’s military action in Kosovo. Did the impossibility of securing approval for military action through the Security Council because of the opposition of Russia and China mean that states could carry out the will of international community on the basis of implied authority and humanitarian intervention? However, there was far less support for this doctrine after the experience of Operation Iraqi Freedom. In the lead-up to the invasion UK Prime Minister Blair tried to invoke this doctrine in response to the threatened French veto of the use of military action against Iraq. But the UK Attorney-General in the full version of his advice, published after Operation Iraqi Freedom, pointed out the problems with this doctrine: “I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter. So there are no grounds for arguing that an ‘unreasonable veto’ would entitle us to proceed on the basis of a presumed SC authorization. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorize a French veto as unreasonable.”47 Thus, while it may be frustrating to many that China and Russia have for their own reasons blocked the imposition of extensive sanctions on the government of Sudan over Darfur, and that they would certainly block the use of force against the 46 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, 2001, 53, available at http://www.iciss.ca/pdf/CommissionReport.pdf. 47 ICLQ 54 (2005), 767.

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government, it is difficult to argue that this allows forcible intervention to stop war crimes in Darfur, and states have not in fact made such an argument. Security Council members have learned lessons from the justifications of implied or revived Security Council authorization employed by the US and others over Kosovo and then over Iraq. Even when states had made it clear in Security Council debates that they did not support the use of force and had expressly stipulated that the resolutions they were willing to accept did not authorize force, the US and the UK had nevertheless claimed to rely on the series of resolutions as authorizing force.48 This experience has led states in the Security Council to be more cautious in passing resolutions, as may be seen with regard to North Korea and Iran and the non-proliferation of nuclear weapons. Member states have gone out of their way to specify the exact provision of the Charter under which they are acting, even though this has not been their usual practice. Thus they made it clear by their reference to Article 41 of the UN Charter on “measures not involving the use of armed force” that Resolution 1718 (2006) condemning the nuclear weapons test by North Korea in October 2006 could not be interpreted to allow the use of force. Similarly, Resolution 1696 (2006) calling on Iran to suspend all enrichmentrelated activities was expressly passed under Article 40 of the UN Charter. The next two resolutions imposing sanctions on Iran expressly said that they were passed under Article 41 of the UN Charter. All these resolutions also deliberately specify that, should additional measures be necessary, further decisions would be required. This formulation is clearly a response to the experience with regard to Iraq. To justify Operation Iraqi Freedom, the US and the UK had argued that because Resolution 1441(2002) said only that in case of further material breach by Iraq of its obligations the Security Council should consider the matter, and because Resolution 1441 did not expressly require another resolution, therefore no such resolution was necessary to authorize military action against Iraq. In the future it will be more difficult for states wishing to use force to claim implied authorization by the Security Council, as was done by some with regard to Kosovo. Supporters of the rule of law should welcome this development and should hesitate to advocate the use of force to resolve complex problems, even in the name of the responsibility to protect.

48

See UN documents S/2003/350, S/2003/351, S/2003/352; Taft and Buchwald, 97 AJIL, 2003, 553; UK Attorney-General’s Advice, 52 ICLQ, 2003, 811, 54 ICLQ, 2005, 767; Australian Attorney-General’s Memorandum, Australian Yearbook of International Law 24 (2003), 415.

Preventing and Rebuilding Failed States By Kirsten Schmalenbach

A. Introduction Even if the term itself was coined in the early 1990s,1 state failure is by far no new phenomenon. On the contrary, the rise and fall of polities goes back to ages far older than the notion of the modern state.2 The same is true for the painful process of readjustment and realignment in the aftermath of disintegration. There had been times when state disintegration was considered another people’s malady unless geo-political interests of certain states were affected. Without oversimplifying the current situation, one can say that the prevention and the overcoming of state failure has become a concern of the international community as the whole. The reasons for the shift in focus are quite obvious: the number of states has more than tripled in the 20th century and many of them emerged without optimal foundations. There is no denying that states still constitute the building blocks of the present international order, be it as actors capable of shaping the legal order or as members of international organizations.3 Metaphorically speaking, the very foundation of this international order is endangered if too many building blocks become porous.4 Judged by popular failed state indices,5 the international community of states is riddled with weak, failing and failed states, at least if one applies the full range of possible political, social and legal indicators for state failure. One may rightly question the value of “failed state rankings” for what they are –at-

1

The term was introduced by G. B. Helman/S. R. Ratner, Saving Failed States, Foreign Policy 89 (1992), 3; the concept of the “weak” state was introduced by G. Myrdal, Asian Drama: Inquiry into the Poverty of National Nations, vol. 1–3, 1968. 2 Cf. J. A. Tainter, The Collapse of Complex Societies, 1988. 3 But see R. Ehrenreich Brooks, Failed States, or the State as Failure, University of Chicago Law Review 72 (2005), 1159, 1172 et seq. 4 Some scholars welcome the disintegration of states in favor of other visions of political organization; cf. D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance, 1995. 5 E.g. the indices of the journal Foreign Policy and The Fund for Peace.

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tention-getters. Besides this, they obscure that state continuity in whatever condition of weakness is still the norm, whereas a total state collapse remains the exception.6 If the worst case scenario occurs, however, the consequences are grave: the factual dissolution of all governmental institutions results in a widespread breakdown of law and order accompanied by general banditry and chaos.7 In this extreme case, the state remains an empty shell of formal international personality; its seat in the assembly of states is still there but unoccupied, so to speak. With no representatives authorized to act on behalf of the failed state, the international community has lost the competent addressee for its concerns. These concerns often refer to the humanitarian disaster caused by banditry, civil war and the absence of governmental facilities and services, as has more or less been the case in Somalia since 1991. However, the total collapse of state institutions is not only a Hobbesian nightmare for the local population but also a security threat for neighboring countries.8 Since September 11, the international community suspiciously monitors fragile states in danger of disintegration under an additional heading: state disintegration enables private entities to utilize the domestic power vacuum for their own criminal aims, e.g. as a base for transnational organized crime and border-crossing terrorism. In today’s world of global networks, the effects of state failure are palpable on a world-wide scale. Thus, it cannot be surprizing that most national security strategies address the issue of state failure on a high priority scale.9

6 J. Milliken/K. Krause, State Failure, State Collapse and State Reconstruction: Concepts, Lessons and Strategies, in: J. Milliken (ed.), State Failure, Collapse & Reconstruction, 2003, 2; R. H. Jackson/A. G. Rosberg, Why Africa’s Weak States Persist: the Empirical and the Juridical in Statehood, World Politics 35 (1982), 1 et seq. 7 See the description of the phenomenon by B. Boutros Ghali, Concluding Statement by the Secretary-General before the United Nations Congress on Public International Law, in: United Nations (ed.), International Law as a Language for International Relations, 1995, 9. 8 At the outset, the Security Council mentioned the destabilizing spillover effect of Somalia’s collapse as the main factor that constitutes a threat to international peace and security, Res. 733 (1992), 23 January 1992. Later, the magnitude of human suffering was considered a threat to peace under Art. 39 UN Charter, Res. 746 (1992), 17 March 1992; cf. S. D. Murphy, Nation-Building: A Look at Somalia, Tulane Journal of International and Comparative Law 3 (1995), 19, 35. 9 See the National Security Strategy of the United States of America of September 2002, available at http://www.whitehouse.gov/nsc/nss.html; the European Security Strategy “A Secure Europe in a better World” of December 2003, available at http://www. consilium.europa.eu/uedocs/cmsUpload/78367.pdf.

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B. Anamnesis: From Weakness to Failure No doubt, the saying “prevention is better than a cure” fully applies to state failure. This truism has been elevated to a guiding principle in the UK’s 2008 security strategy paper: “[T]he most effective way to reduce the threat posed by failed states is to support fragile states in strengthening their governance, their development and their security capabilities, and to improve the capacity of the international community to act to stop states degenerating, like Afghanistan and Somalia in the 1990s, or Zimbabwe today.”10 Evidently, the strategy to prevent foreign states from collapsing requires the prior identification and in-depth assessment of factors indicating political fragility in different preliminary phases of state failure. The same applies to rebuilding strategies, given that the causes of state failure are necessarily the point of departure for successful measures of reconstruction. The task to identify root causes and symptoms of state failure has been extensively addressed in political science in order to provide national and international strategists with the necessary factual foundation for policy directions, e.g. with a view to early warning systems. Most considerations on causes and symptoms of state failures indirectly or directly refer to two benchmarks: The first one is the achievement of modern statehood against which a state is measured as having success or not, i.e. the effective fulfillment of state functions. The second benchmark is the practical impact of the failure to fulfill the expectations associated with modern statehood.11 It is important to note that these benchmarks are exclusively preoccupied with empirical statehood – i.e. its de facto attributes12 – as opposed to juridical statehood. With some simplification one can say that the judicial statehood is the birth certificate of a state through international law, issued at the very moment other states deem the empirical aspects of statehood as being in place, first and foremost the criterion of effective government.13 Given that international practice is rather generous with the factual elements of statehood, the concurrence of judicial and empirical statehood is every now and again entirely fictional. Once judicial statehood is recognized, the international legal order clings to the state’s international personality 10

National Security Strategy of the United Kingdom of March 2008, para. 2.3, available at http://interactive.cabinetoffice.gov.uk/documents/security/national_security_ strategy.pdf. 11 Milliken/Krause (note 6), 1. 12 Many political scientists employ the concept of empirical statehood that is influenced by Max Weber, Wirtschaft und Gesellschaft, 1922, Teil I, Die Wirtschaft und die gesellschaftlichen Ordnungen und Mächte, § 17. 13 G. H. Fox, Strengthening the State, Indiana Journal of Global Legal Studies 7 (1999), 35, 46.

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despite poor conditions of empirical statehood, being more concerned with legal security and continuity.14 International actors, however, may nevertheless respond to the asymmetry caused by weak empirical statehood. As already pointed out, the identification of preliminary phases of state failures must start with the determination of the state’s core functions forming the very basis of what is considered an empirically “consolidated” state. The notion of what the core state functions are varies from the minimal concept of security through to the far-reaching concept of welfare. Admittedly, attempts to select “indispensable” state functions are under the caveat that the underlying image of a modern state may be idealized, ahistorical or merely Eurocentric. Without turning a blind eye on these reproaches, three functions of modern statehood can be regarded as essential, at least from the viewpoint of the population concerned: provision of safety and security (security governance), representation of the people (political governance) and performance of basic services (socio-economic governance).15 In order to fulfill these three core functions, a basic level of state capacity and commitment must exist: effective authority over the territory and adequate administrative capacities including personnel, skills, systems and infrastructure.16 With regard to the guarantee of security, it is safe to say that this is the prime function of every modern state, the logical consequence of its monopoly on the use of force within the boundaries of its territory.17 The security function may be threatened by internal and external conflicts and the erosion of the monopoly on legitimate force. With regard to the notion of representation (political governance), there is little consensus over what makes a state legitimate or representative for the people governed by it.18 Self-determination, participation in political processes and safeguards of minority rights can be considered crucial in this respect. Conflicts over

14

I. Brownlie, Principles of Public International Law, 2003, 71. Despite some deviancies, the concept of the three core functions can be found by U. Schneckner, Fragile Statehood, Armed Non-State Actors and Security Governance, in: A. Bryden/M. Caparini (eds.), Private Actors and Security Governance, 2006, 23, 31; R. I. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators, in: id. (ed.), State Failure and Weakness in a Time of Terror, 2003, 1, 3; Milliken/Krause (note 6), 26; see also the project of the UK Prime Minister’s Strategy Unit “Countries at Risk of Instability” of February 2005, 6; for a rather different approach see I. W. Zartman, Introduction: Posing the Problem of State Collapse, in: id. (ed.) Collapsed States, 1995, 1, 5: sovereign authority, tangible organization of decision-making, security guarantor. 16 F. Fukuyama, State Building: Governance and World Order in the 21st Century, 2004, 6. 17 Rotberg (note 15), 3. 18 Cf. B. R. Roth, Governmental Illegitimacy in International Law, 1999, 200 et seq. 15

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recognition and representation are the key root causes of state failure.19 If the state refuses to allow its citizens to participate freely, openly and fully in political processes, if it denies essential freedoms and denies the rule of law, the state carries the nucleus of unrest and instability within it.20 Lastly, the modern state is expected to provide for physical infrastructure (e.g. roads and railways) and basic services (e.g. schools, water, health care, stable currency). A state which is not capable (or willing) to grant relief after a natural or man-made disaster cannot be regarded as consolidated. Labeling a state as “weak,” “failing” or “failed” is more or less an exercise of assessing and weighing the detected deficits in the performance of the mentioned core functions. The line between these labels is not only narrow but also susceptible to various interpretations in every single case. This is not the place to go deeply into the different method-driven approaches to set up analytical frameworks for the classification of states. For the purpose of this study, it is enough to point out some common denominators. For many authors, weak or fragile states suffer from some deficits in political and socio-economic governance,21 often accompanied by intercommunal tension short of violence.22 However, these states do comply with their safety and security function even though the deficits in political governance may reach deep into this sector (e.g. with regard to fundamental freedoms and the rule of law). States with semi-authoritarian or authoritarian features belong to this category; their primary “weakness” is their unresponsiveness and repressiveness.23 Grave deficits in state-controlled security governance are regarded as typical symptoms of a failing state. Shortfalls in this field deprive the state’s security apparatus of its monopoly on the use of force and reduce its role to that of one actor among others (“security governance beyond government”24), which usually goes hand in hand with the proliferation of self-organized local communities. This is a familiar scenario in civil war situations but also when the government loses control over large-scale criminal, ethnic or religious violence. If the state is nonetheless able to perform to a certain extent political and socio-economic functions in significant parts of its territory, the state remains in the stage of failing. The more the performance of these two remaining functions deteriorates, the more the state drifts 19

Milliken/Krause (note 6), 7. Cf. Fox (note 13), 49–51; A. v. Bogdandy/St. Häußler/F. Hanschmann/R. Utz, StateBuilding, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches, Max Planck Yearbook of United Nations Law (Max Planck UNYB) 9 (2005), 579, 581. 21 Schneckener (note 15), 32. 22 Rotberg (note 15), 4. 23 Ibid. 24 Schneckener (note 15), 34. 20

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towards total failure. If state institutions have evaporated or the existing institutions remain dysfunctional and inoperative, the state is commonly labeled as having collapsed irrespective of whether a central government formally exists. Since the vacuum is regularly filled by armed non-state actors and self-organization communities, the situation can be described as “security governance without government.”25 The above-mentioned categorizations of weak, failing and failed states may gain some significance in the context of strategic analyses.26 Their use for the international legal order is far from clear, though. As already pointed out, the rules of international law are tied in with judicial statehood. However, effective governmental capacities and powers are essential for the proper fulfillment of international obligations entered into by the state. Therefore, deficits in empirical statehood are legally significant under international law, especially with regard to the weak or failed state’s responsibility. When the Special Rapporteur Alston reported to the Human Rights Council incidents of arbitrary executions and homicides in Guatemala, he stated that “the responsibility for this must rest with the State. Guatemala is not a failed State (…).”27 Art. 9 of the ILC Draft Articles on the Law of State Responsibility addresses acts of non-state entities carried out “in the absence or default of official authorities.” Under certain conditions these acts are considered “acts of the state” despite a non-existing state apparatus.28 Art. 9 exemplifies that international rules do not use terms like “weak,” “failing” or “failed states.” Instead, they refer to specific manifestations of governmental deficits under the heading of judicial statehood. This applies to the practice of the Security Council under Art. 39 UN Charter as well. It is the outbreak of severe ethnic violence or civil war, the grave suffering of civilians or the hosting of terrorists which constitutes a threat to peace, not the exchangeable label of weakness, fragility or failure. Thus, symptoms and manifestations of state fragility and failure may trigger enforcement measures under Chapter VII if the requirements of Art. 39 UN Charter are met, especially in the light of the Security Council’s progressive interpretation. If the Security Council, however, leaves the realm of sanctions and enforcement measures and enters the field of political strategies, e.g. in its “Declaration on strengthening the effectiveness of the Security Council’s role in conflict prevention, particularly in Africa,”29 annexed to Res. 1626 (2005), the categories of weakened 25

Ibid. See for example the project of the UK Prime Minister’s Strategy Unit “Countries at Risk of Instability” of February 2005. 27 UN Doc. A/HRC/4/20/Add. 2, 19 February 2007, 2. 28 Commentaries to the draft articles on responsibility of States for international wrongful acts, UN Doc. A/56/10 (SUPP), 111. 29 SC Res. 1625 (2005), 14 September 2005. 26

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and collapsed governance structures have their reappearance, comparable to the usage of national security strategies. Understandably, the Security Council and the General Assembly cautiously refrain from stigmatizing specific UN members as “weak” or “failed” for reasons of diplomacy.

C. Preventing State Failure I. The UN Prevention Strategy Given that state failure is closely linked to deficits in security governance, the UN indirectly covers the issue of state failure under the headline of conflict prevention. In search of a comprehensive conflict prevention strategy addressing the root causes of armed conflicts as well as political and social crises, the Security Council specifies the cornerstones of actions in its above-mentioned Conflict Prevention Declaration annexed to Res. 1625 (2005):30 The spectrum of envisaged preventive measures ranges from Chapter VIII cooperation to the promotion of sustainable development, poverty eradication, national reconciliation, good governance, democracy, gender equality, the rule of law as well as the respect for and the protection of human rights. The cascade of measures to prevent armed conflicts necessarily works against conditions that most likely result in state failure. In the same year, on the advice of the UN High-level Panel on Threats, Challenges and Change the Security Council and the General Assembly established a Peacebuilding Commission. As the UN High-level Panel has stated in its report, “the core functions of the Peacebuilding Commission should be to identify countries which are under stress and risk sliding towards State collapse; to organize, in partnership with the national Government, proactive assistance in preventing that process from developing further; […]”31 Contrary to these recommendations, the Commission’s mandate was limited to post-conflict situations. An extension to early warnings activities aimed at preventing state failure regardless of its causes was opposed by a number of developing countries who feared their submission to constant monitoring and control.32 The Peacebuilding Commission’s present mandate is to marshal resources, inter alia to advise on and propose integrated strate30

For reference see note 29. See, e.g., Report of the UN High-level Panel on Threats, Challenges and Change, A more secure world: our shared responsibility, UN Doc. A/59/565, 2 December 2004. 32 Bonn International Center for Conversion (ed.), Die Peacebuilding Commission der Vereinten Nationen. Ein Generalschlüssel für den Frieden?, concept paper, March 2008, available at http://www.bicc.de/uploads/pdf/publications/concept_papers/peace_build/ peacebuilding_commission_konzeptpapier.pdf, 6. 31

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gies for post-conflict peacebuilding and recovery, to focus attention, in particular, on the reconstruction and institution-building efforts, to provide recommendations and information to improve coordination and to develop best practices.33 As an intergovernmental advisory body, the Peacebuilding Commission is currently seized with situations in Burundi, Guinea-Bissau, Sierra Leone and the Central African Republic, altogether states in a stage of fragile statehood. Judged by the number of declarations and reports which emphasize the need for preventive actions, the observation that a “culture of prevention is taking hold at the United Nations”34 is quite correct. Former Secretary-General Kofi Annan, however, dampened high flying hopes when he identified in his 2006 Report an “unacceptable gap […] between rhetoric and reality in the area of conflict prevention.”35 Annan gave weighty reasons for this assessment:36 While the costs of prevention have to be paid in the present, its benefits lie in the distant future. These benefits are the wars and disasters that do not happen; hence, the success is not easily tangible, especially not for the broad public.37 In addition, international and national bureaucracies have not yet removed institutional barriers that hinder cross-sector cooperation. Indeed, the lack of political will and technical barriers reduce preventive strategies too often to lip service. In addition, legal barriers such as the protective shield of sovereign equality (Art. 2 para. 1 UN Charter) and the principle of non-intervention (Art. 2 para. 7 UN Charter) may also frustrate wellintentioned efforts to prevent states from failing.

II. Duty to Cooperate There are many tools available to avert another state from failing. Some are developmental, such as direct aid, debt relief, assistance in institutional capacitybuilding and security sector reforms. Others are diplomatic, e.g. international mediation and quiet diplomacy. None of these tools are a panacea, neither in

33

SC Res. 1645 (2005), 20 December 2005, GA Res. 60/180, 30 December 2005. Report of the Secretary-General on the implementation of SC Res. 1625 (2005) on conflict prevention, particularly in Africa, of 14 January 2008, UN Doc. A/2008/18, para. 2. 35 Progress report on the prevention of armed conflict of 18 July 2006, UN Doc. A/60/ 891, para. 4. 36 Report of the Secretary-General on the work of the Organization of 31 August 1999, GAOR, 54th session, supp. no. 1 (A/54/1), paras. 23–25. 37 See also the speech given by the then Foreign Secretary Jack Straw “Failed and Failing States” at the European Research Institute, University of Birmingham on 6 September 2002, available at http://www.eri.bham.ac.uk/events/jstraw060902.pdf. 34

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isolation nor in sum, as former British Foreign Secretary Jack Straw pointed out.38 All of them require a scarce commodity: political will on all sides. There was no deficiency in such willingness when Macedonia drifted towards serious ethnic conflict with civil war symptoms in January 2001.39 Due to the effective and highly coordinated efforts of NATO, the OSCE, the World Bank and the European Union with High Representative Solana leading the way, Macedonia serves as the perhaps best example in practice of successful conflict prevention. Admittedly, the essential precondition of the success, Macedonia’s willingness to accept the structural and diplomatic support, was fueled by the prospect of future EU membership.40 In many other cases, the lack of governmental amenability constitutes an insurmountable obstacle for early preventive measures offered by other states,41 ingloriously demonstrated by Zimbabwe under the reign of Robert Mugabe. There is no denying that the duty to prevent the collapse of state institutions and functions falls first and foremost within the responsibility of the fragile state. No sovereign right to self-abandonment exists under international law. The members of the High-level Panel on Threats, Challenges and Change, established by the UN Secretary-General in 2003, stated in their final report: “In signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibility. Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community.”42 In 2001, the International Commission on Intervention and State Sovereignty, established by the Government of Canada, emphasized that the leitmotif of state sovereignty has experienced a fundamental recharacterization under the UN Charter: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties.43 It is highly doubtful, however, whether a general, comprehensive

38

Ibid. A. J. Bellamy/P. William/S. Griffin, Understanding Peacekeeping, 2004, 265–267. 40 Presidency Conclusions of the Santa Maria da Feira European Council, No. 200/1/00, 19–20 June 2000. 41 B. R. Rubin/B. D. Jones, Prevention of Violent Conflict: Task and Challenges for the United Nations, Global Governance 16 (2007), 391, 400. 42 Report of the UN High-level Panel (note 31), para. 29. 43 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, 2001, para. 2.14. Tomuschat emphasizes that the term “responsibility” has a political and moral connotation, reflecting the tension between sovereignty and general welfare of the international community, see id., International Law: Ensuring the Survival on the Eve of a New Century, Recueil des cours 281 (1999), 9, 266. 39

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legal duty to cooperate flows from today’s concept of sovereignty.44 Apart from its indeterminacy, such an approach overestimates the range and the complexity of community interests as opposed to individual state interest.45 In addition, international treaty law focuses on duties to cooperate only in specific subject-related areas.46 Art. 56 UN Charter, for example, demands cooperation in economic and social fields in order to promote the creation of conditions of stability and wellbeing envisaged in Art. 55 UN Charter. The provision’s shadowy existence47 and the fact that Art. 2 UN Charter48 does not list “cooperation” among member states’ duties should not lead to premature conclusions. The fourth principle of the General Assembly’s Friendly Relations Declaration clarifies that the duty to cooperate permeates other UN policy fields as well, especially the area of security and human rights.49 Member states must fulfill their Charter-based duty to cooperate in good faith, as emphasized for all Charter obligations in Art. 2 para. 2 UN Charter. It is the common aim – the prevention of state failure – which must guide cooperation in the relevant fields, not individual advantages and interests. On the other hand, the high level of abstraction grants member states a large measure of discretion about how to discharge the duty to cooperate.50 In addition, the essence of cooperation – understood as freely coordinated action51 – and the principle of sovereign equality set important limits on the duty to cooperate. Without prejudice to a possible human rights obligation to accept external emergency relief,52 no state 44

Critical in this regard Tomuschat (note 43), 262; R. Wolfrum, in: G. Dahm/J. Delbrück/ R. Wolfrum (eds.), Völkerrecht, vol. I/3, 2002, paras. 172, 855. 45 Wolfrum (note 44), 854. 46 See, e.g., Art. 2 para. 1 of the International Covenant on Economic, Social and Cultural Rights, 1996, UNTS, vol. 993, 3; Art. 24 of the Convention on the Protection of the Maritime Environment of the Baltic Sea Area, 1992, OJ Eur. Comm. 1994, 73; or the Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX), 12 December 1974. 47 Cf. also R. Wolfrum, Art. 56, in: B. Simma et al. (eds.), The Charter of the United Nations, 2nd ed. 2002, vol. II, 943, MN 7. 48 Art. 1 para. 3 UN Charter does not impose a duty to cooperate on member states but focuses on the duty of the UN to promote cooperation of member states. 49 For the question whether the Friendly Relations Declaration speaks of “legal duties” or merely of “moral obligations” see H. Neuhold, Die Pflicht zur Zusammenarbeit zwischen Staaten: Moralisches Postulat oder völkerrechtliche Norm?, in: H. Miesler et al. (eds.), Ius Humanitatis, Festschrift Verdross, 1980, 575. 50 Ch. Schreuer, State Sovereignty and the Duty of States to Cooperate, in: J. Delbrück (ed.), International Law of Cooperation and State Sovereignty, 2002, 163, 170–173. 51 Wolfrum (note 44), 852. 52 Cf. Art. III para 3 of the Resolution of the Institute of International Law on humanitarian assistance, 2 September 2003, available at http://www.idi-iil.org/idiE/resolutionsE/ 2003_bru_03_en.PDF; a refusal of external emergency relief in the face of gross human

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in whatever stage of failure is legally obliged to consent to specific preventive state-building measures offered by well-meaning third parties. After all, the yardstick for the fragile state’s willingness to cooperate is its conduct at the negotiating table. As the International Court of Justice (ICJ) pointed out in the Continental Shelf case, negotiations must be “meaningful, which will not be the case when either insists upon its own position without contemplating any modification of it.”53 Meaningful negotiations may lead to an agreement on wide-ranging external state-building measures and – as a possible consequence thereof – limitations of sovereign rights. But for all that cooperativeness, the consensus may suffer from a serious flaw under international law: if the consenting government of the fragile state does not represent the whole people belonging to the territory, the agreement on state-building measures supporting and stabilizing the illegitimate government may easily violate the whole people’s right of internal political self-determination.54 Today, it is widely accepted that the whole people of a sovereign state – the nation – is entitled to political self-determination and that this right is neither destroyed nor diminished by its having already once been invoked and put into effect.55 The approach aims at protecting the people against authoritarian regimes by emphasizing the democratic element of the internal political self-determination.56 Even if the ius cogens character of this dimension of the people’s right of

suffering is unjustifiable under Art. 2 and Art. 6 International Covenant on Civil and Political Rights, 1966, cf. M. Novak, CCPR Commentary, 2005, Art. 2, para. 19. The G8 Leaders’ Statement on Zimbabwe of 8 July 2008 para. 5, available at http://www.g8summit.go. jp/eng/doc/doc080709_08_en.html, is in line with this legal conception: “The Zimbabwean authorities must allow the immediate resumption of humanitarian operations (…) to prevent the suffering of the most vulnerable people of Zimbabwe.” See also D. J. Scheffer, Towards a Modern Doctrine of Humanitarian Intervention, University of Toledo Law Review 23 (1992), 254, 258. 53 North Sea Continental Shelf case (Germany v. Denmark), Judgment of 20 February 1969, ICJ Reports 1969, 3, 47, para. 85 (a). 54 St. Kadelbach, Zwingendes Völkerrecht, 1992, 223. 55 A. Cassese, Self-determination of Peoples. A Legal Reappraisal, 1995, 101; for an analysis of the wording of Art. 1 CCPR (“All people have …” instead of “shall have”) see Nowak (note 52), Art. 1, para. 18. 56 Nowak (note 52), Art. 1, para. 34; see also the Vienna Declaration and Programme of Action of the World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, section I, para. 2: “… sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.”

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self-determination is difficult to establish, it constitutes an important legal barrier for third states when dealing with authoritarian regimes on the brink of failure.

III. Unilateral Measures and Interventions Despite academic attempts to elevate community interests to a benchmark of any state conduct, no legal duty to provide assistance for a fragile state has yet emerged.57 If, however, states are willing to assist a fragile state but the latter’s government rejects or frustrates the offer, the call for sanctions or intervention is readily made. Possible unilateral measures may pursue two aims: firstly, to unilaterally contain the symptoms and impact of state failure despite the government’s refusal and, secondly, to force the government to cooperate. As the case may be, responses to non-cooperativeness easily overstep the narrow line between lawful and unlawful unilateral measures, especially with regard to the principle of nonintervention and the prohibition of the use of force.58 For the purpose of this paper, it is enough to sketch out some issues related to the duty to cooperate without rehashing the endless discussion on the lawfulness of economic coercion,59 humanitarian intervention60 and preemptive self-defense.61 Under the premise that the 57 See Art. 139 Outcome Document of the 2005 World Summit: “We also intend to commit ourselves, as necessary and appropriate, to helping States build capacities to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out,” UN Doc. A/60/L.1; but see Art. 41 ILC Law of State Responsibility: states shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40 [a serious breach by a State of an obligation arising under a peremptory norm of general international law]; for an assessment of the outcome document with regard to legal duty to assist or intervene see C. Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norms? American Journal of International Law (AJIL), 101, (2007), 99, 119. 58 Nicaragua v. United States (Merits), ICJ Reports 1986, para. 202; for the lawfulness of humanitarian aid see ibid., para. 242. 59 T. J. Farer, Political and Economic Coercion in Contemporary International Law, AJIL 79 (1985), 405–413; R. B. Lillich, Economic Coercion and the International Legal Order, International Affairs 51 (1975), 358–371; D. Bowett, Economic Coercion: Past and Present, Virginia Journal of International Law (VJIL) 16 (1976), 245; R. B. Lillich, Economic Coercion and the New International Economic Order, 1976; R. D. Porotsky, Economic Coercion and the General Assembly, Vanderbilt Journal of Transnational Law 28 (1995), 901–958; M. Nincic (ed.), Dilemmas of Economic Coercion, 1983. 60 T. Franck, Legality and Legitimacy in Humanitarian Intervention, in: T. Nardin (ed.), Humanitarian Intervention, 2006, 143; C. C. Joyner, The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, VJIL 47 (2007), 693; in the

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duty to cooperate in the field of security, human rights and economic stability is owed to each UN member, unilateral measures to enforce cooperativeness may be qualified as countermeasures (Art. 42, 49 ILC Draft on the Law of State Responsibility), provided they fall short of direct and indirect armed force. The law of state responsibility is, however, a rather broad-brushed and awkward tool to deal with non-cooperativeness, given that the element of free will and latitude is inherent to the concept of cooperation. In addition, “cooperation” is not a comprehensive duty but displays several lacunae, especially in view of the diverse root causes and impact of state failure.62 All in all, the problem of determining when and under what circumstances unilateral measures drift towards unlawfulness provides a strong argument for collective enforcement measures under Chapter VII of the UN Charter.

IV. Legal Limits to Chapter VII Measures This in turn leads to the question of whether the Security Council acts beyond the scope of Chapter VII when it adopts enforcement measures, e.g. targeted sanctions against state representatives misusing their powers, for the sole purpose of preventing a member state’s collapse into anarchy. That much is clear: a failing state is no threat to peace by definition. As already pointed out, no objective criteria are available to clearly identify a weak or failing state. Therefore, the Security Council’s practice of exclusively referring to the symptoms and root causes of state failure is not only appropriate but also legally imperative under Art. 39 UN Charter. To the extent that the outbreak of severe ethnic violence, the grave suffering of civilians or other symptoms of state failure can be seen as constituting a threat to peace, enforcement measures are within the scope of Chapter VII. The Security Council’s progressive interpretation of Art. 39 UN Charter, which undoubtedly diverges from the framer’s intent in 1945, thereby opens the door for preventive state-building measures. The authorization of US-led multinational forces after the violent 1991 coup d’état in Haiti exemplifies the practice of testing the limits of the

Report of the International Commission on Intervention and State Sovereignty (note 43), the situation of state collapse and the resultant exposure of the population to mass starvation and/or civil war is considered as such conscience-shocking that it constitutes a just cause for military intervention, 33. Neither the High-Panel Report of the Secretary-General (note 42) nor the Outcome Document of the 2005 World Summit (note 57) revisited this topic. 61 R. Kolb, Self-Defence and Preventive War at the Beginning of the Millennium, Zeitschrift für öffentliches Recht 59 (2004), 111–134; M. Krajewski, Humanitarian Intervention and Other Use of Force?, Baltic Yearbook of International Law 5 (2005), 1–26. 62 Schreuer (note 50), 175.

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Charter.63 The Haiti case was precedent-setting for enforcement measures against unconstitutional regime changes within highly fragile states. After the multinational forces had paved the way for the elected President Aristide’s return to power in 1994, the UN Mission in Haiti (UMMIH) took over the task of sustaining a secure and stable environment, professionalizing the national army and establishing a separate police force.64 All of these peace-building efforts under Chapter VII prevented Haiti from drifting towards institutional and functional collapse. In cases like this, the cooperativeness of the government is desirable but, from a purely legal point of view, unnecessary since the shield of sovereignty is permeable under Chapter VII, as accentuated by Art. 2 para. 7 UN Charter. It has frequently been stressed that acting within the scope of Art. 39 UN Charter does not mean that the Security Council’s powers are unlimited.65 Any consideration of the legal limits of preventive actions addressing imminent state failure necessarily corresponds to the general discussion on the Security Council’s legal ties under Chapter VII, recently rekindled in the context of the UN targeted sanctions regime.66 Within the context of preventive state-building measures specific problems arise under the headings of “sovereignty” and “self-determination.” Unlike the principle of non-interference in internal affairs (Art. 2 para. 7 UN Charter), the principle of self-determination is legally protected in several ways. Firstly, the promotion of its respect ranks among the purposes of the United Nations (Art. 1 para. 2 UN Charter). Secondly, even outside of a colonial context, one aspect of the multifaceted right of self-determination is considered ius cogens: the right of self-determination of the people exposed to foreign domination.67 As such, the principle has to be observed by the Security Council, acting within the limits of the UN Charter (Art. 53 Vienna Convention on the Law of Treaties). As 63

SC Res. 944 (1994), 29 September 1994 . SC Res. 940 (1994), 31 July 1994, para. 9. 65 ICTY (Appeals Chamber) Case No. IT-94-1-AR72, Prosecutor v. Tadiü, Decision of 2 October 1995, para. 28, Human Rights Law Journal 16 (1995), 437. 66 G. Thallinger, Sense and Sensibility of the Human Rights Obligations of the United Security Council, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 67 (2007), 1015; F. Mégret/F. Hoffmann, The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibility, Human Rights Quarterly 25 (2003), 314; A. Reinisch, Developing Human Rights and Humanitarian law Accountability of the Security Council for the Imposition of Economic Sanctions, AJIL 95 (2001), 851. 67 Cf. East Timor (Portugal v. Australia) ICJ Reports 1995, 90, para. 29: “one of the essential principles of contemporary international law”; separate opinion Judge Ammoun, Barcelona Traction, Light, and Power Company Limited (Belgium v. Spain) ICJ Reports 1970, 3, 304; A. Orakhelashvili, Peremptory Norms in International Law, 2006, 52; for an in-depth analysis of the ambivalent state practice see Cassese (note 55), 140. 64

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already pointed out, the right of political self-determination has a permanent character, i.e. it does not evaporate once a sovereign state has been established.68 In this respect, the right of self-determination provides the nation and third states with a strong legal weapon against illegitimate authoritarian regimes.69 In many fragile state scenarios, however, the government still represents the whole people, internally and internationally. That may lead to the conclusion that the principle of sovereign equality dominates the legal relationship between the fragile state and the interfering state, superseding the people’s right without extinguishing it. The fragile state’s relationship to the UN is different, though. UN member states’ sovereignty does not provide a defensive right against interfering enforcement measures (Art. 2 para. 7 UN Charter). When the shield of state sovereignty is partially dismantled by Chapter VII measures, the people’s right to internal self-determination reemerges and must therefore be considered by the Security Council. Since the people’s right to self-determination is neither a static nor a clearly defined principle, preventive state-building measures under Chapter VII have to pass first and foremost the proportionality and the necessity test in view of selfdetermination. In other words, a people’s right to freely determine its political status needs to be balanced with the internationally desired effect – the prevention of state failure. Starting from that, the UN’s actions under Chapter VII must take due account of existing governmental structures and state institutions representing the whole of the population.70 The same is true for entrenched federal and autonomy rights. Vice versa, peace-building measures under Chapter VII introducing a particular form of government, federal structures or autonomy rights into the constitutional order of a centralized state require a special justification.71 This might be the reason why the Security Council was keen to emphasize the FRY’s consent to the idea of a substantially autonomous Kosovo region in Resolution 1244.72 To

68 Nowak (note 52), Art. 1, para. 34; see also the Vienna Declaration and Programme of Action of the World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, section I, para. 2: “… sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.” 69 Cf. supra C. II. 70 Cf. G. Fox, Humanitarian Occupation, 2008, 208, who equates internal political selfdetermination with the state’s political autonomy. 71 More rigid T. D. Gill, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter, Netherlands Yearbook of International Law 26 (1995), 33, 75. 72 10th and 11th recital of the Preamble of Res. 1244, 10 June 1999.

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base the establishment of regional autonomy on the forced “consent”73 of the sanctioned UN member state is neither an ideal nor a necessary line of argument in cases like Kosovo. Failure of nation-building, brought to light by violent ethnic conflicts or genocide, may justify the Security Council’s interference in the internal constitutional order of a sovereign state if this is the only solution to lastingly secure the fundamental international rights of the persecuted group. In this case, the internal self-determination of the group aspiring to autonomy prevails over the internal self-determination of the nation as a whole. In contrast, the enforcement of a territory’s secession under Chapter VII would arguably overstep the legal line drawn by the right of internal political self-determination of the whole of the nation.74

D. Rebuilding Failed States For ages, a stumbling state was expected to resurge by virtue of its own capacity to regenerate if not annexed or dismembered by other powers. The process of rethinking this concept started at the end of World War II due to geo-strategic interests of the US and its allies. West Germany and Japan are commonly regarded as success stories of state-building measures imposed by occupying powers in fruitful conjunction with the self-healing capacities of the defeated states. After its creation in 1945, the United Nations became rapidly involved with collapsed states, a side-effect of the decolonization process under the auspices of the organization. In the case of the then newly independent Republic of the Congo, the governmental breakdown occurred soon after the UN mission in the Congo (ONUC) was locally established with the consent of the Congolese government. By force of circumstances, the peace-keeping forces provided basic state functions, in particular restoring law and order. Four years later, in 1964, ONUC left the country without having created sustainable and long-term structures through targeted state-building efforts.75 The Secretary-General had rejected the idea to extend ONUC’s mandate 73 Ch. Tomuschat, Secession and Self-determination, in: M. G. Kohen (ed.), Secession. International Law Perspective, 2006, 23, 33. 74 M. Goodwin, From Province to Protectorate to State? Speculation on the Impact of Kosovo’s Genesis upon the Doctrines of International Law, German Law Journal 8 (2007), 1, 11 et seq.; for a different approach see E. Milano, Unlawful Territorial Situations in International Law. Reconciling Effectiveness, Legality and Legitimacy, 2006, 217 et seq.; M. Herdegen, Der Wegfall effektiver Staatsgewalt im Völkerrecht: The Failed State, Berichte der Deutschen Gesellschaft für Völkerrecht, vol. 34, 71. 75 C. Stahn, The Law and Practice of International Territorial Administration, 2008, 246.

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in this respect because, “[t]he time has more than come when the Congolese Government will have to assume full responsibility for security, law and order in its country as well as for its territorial integrity.”76 There is no point in speculating whether the Congo’s long history of struggling with fragility and despotism results from the UN’s decision to leave the country to its own devices. Be that as it may, the UN’s and the wider international community’s present attitude towards collapsed states is considerably different. In several cases since 1990, a de jure state without de facto statehood was or is kept alive by increasingly sophisticated rebuilding efforts and machineries, provided the political will on the side of the relevant international actors exists.77

I. Actors and Approaches If rebuilding strategies are at issue, most analyses concentrate on external efforts to help the failed state back on its feet. It is incontestable, however, that domestic actors are first and foremost competent to accomplish this task. This is what the Security Council had in mind when “recognizing that the people of Somalia bear the ultimate responsibility for setting up viable national political institutions and for reconstructing their country.”78 As a rule, either a military victory or a more or less uneasy peace between civil war factions is the starting point of internal rebuilding processes.79 Apart from the major problem of pseudo or fragile peace, internal efforts to rebuild governmental structures often fail due to the difficult task of transforming raw power into authority, armed movements into civil political institutions and self-interest into common interest.80 In addition, domestic actors are usually lacking the necessary resources for the Herculean task of rebuilding a state from scratch. Such unfavorable conditions and the apprehension that internal processes may not bring about the internationally desired democratic structures may lead to interventions of external actors, i.e. international organizations and other states. Depending on the political will of the external actors to devote resources, these interventions can be selective or comprehensive. Selective rebuilding measures are aimed at triggering, supporting and directing internal self-healing processes. However, if only a few root causes of state failure 76 UN Doc. S/5784, 42; United Nations Department of Public Information, The Blue Helmets, 3rd ed. 1996, 199. 77 Cf. M. Ottaway, Rebuilding State Institutions in Collapsed States, in: Milliken (note 6), 245, 246. 78 5th recital of SC Res. 897 (1994), 4 February 1994. 79 Cf. Ottaway (note 77), 257. 80 Ibid.

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are addressed, it is highly probable that the fresh start carries with it the seed of the next collapse. Comprehensive approaches are more promising but require a strong military and civil international presence within the failed state. On rare occasions, external actors step into the abandoned shoes of the collapsed state and provide governmental functions while working on lasting state institutions. In these cases, the failed state is under international administration or occupation, pacific or belligerent, depending on circumstances and label. Much has been written about the best practice of state reconstruction extracted from completed or discontinued projects. International organizations such as the UN and the IMF have developed a set of prescriptions, ranging from the re-establishment of a pacified environment to capacity-building of tax collection agencies.81 Unsurprisingly, international actors engaged in rebuilding state structures are more concerned with political strategies than with legal frameworks. However, external rebuilding efforts do not take place in a legal vacuum.

II. Law Governing United Nations State-Building Missions In the majority of failed state scenarios, the UN is at the forefront when external rebuilding measures are needed. In this regard, the organization’s efforts in the Congo (MONUC82), Somalia (UNOSOM II83), Mozambique (ONUMOZ84), Cambodia (UNTAC85), and Sierra Leone (UNAMSIL86) tell stories of successes and failures, setbacks and improvements in the field of state reconstruction. Admittedly, not all of these cases involved a total collapse of governmental institutions. In this regard, Somalia remains an often-cited textbook example, closely followed by Cambodia and Sierra Leone. Provided with more or less strong civilian mandates, the UN mission performed selective governmental functions (e.g. UNAMSIL), de facto governance (UNOSOM II) or transitional authority (UNTAC). International

81

Ibid., 250–252. SC Res. 1279 (1999), 30 November 1999. 83 Established by SC Res. 751 (1992), 24 April 1992; see generally Ch. E. Philipp, Somalia – A Very Special Case, Max Planck UNYB 9 (2005), 517. 84 Established by SC Res. 797 (1992), 16 December 1992. 85 Established by SC Res. 745 (1992), 28 February 1992; see generally L. Keller, UNRAC in Cambodia – from Occupation, Civil War and Genocide to Peace, Max Planck UNYB 9 (2005), 127; Stahn (note 75), 269–279. 86 Established by SC Res. 1270 (1999), 22 October 1999, and 1289 (2000), 7 February 2000; see generally M. Goldmann, Sierra Leone; African Solutions to African Problems?, Max Planck UNYB 9 (2005), 457. 82

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territorial administrations under the authority of the UN such as UNMIK in Kosovo and UNTEAT in East Timor are best examples for comprehensive state-building projects. However, since they do not involve preceding state failure, these cases belong to a different category of missions. Irrespective of whether the UN mission shares governmental authority with domestic institutions or completely replaces inoperable administrative institutions within a collapsed state, the mission’s powers usually rest on a mandate authorized by the Security Council under Chapter VII.87 With no legitimate government representing the collapsed state, recourse to enforcement measures is unavoidable given that the collapsed state is incapable of agreeing to the mandate and the deployment of the UN mission. Since it is the Security Council’s major task to maintain international peace and security, it stands to reason that a collapsed state has to be safeguarded against the covetousness of other states. To this end, the collapsed state benefits from the legal fiction of de jure statehood. Its protective shield of sovereign equality (Art. 2 para. 1 UN Charter) and territorial integrity (Art. 2 para. 4 UN Charter) remains intact with respect to third states, only penetrable by Chapter VII measures.88

1. Right to Internal Self-Determination The internal aspect of the sovereignty of a collapsed state, however, is a totally different issue. With no operable government structures left in a collapsed state, it is up to the population concerned to authorize the new representatives of popular sovereignty.89 Given its ius cogens character and its embeddedness in the UN Charter (Art. 1 para. 2 and Art. 55 UN Charter), the right of internal self-determination has to be respected by the Security Council even if the state-building mission is mandated under Chapter VII. Activities that lastingly obstruct a people’s

87 For the rationale behind the obligatory Chapter VII mandates see the Report on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809 (2000), para. 213: “… even the most benign environment can turn sour – when spoilers emerge to undermine a peace agreement and put civilians at risk (…).” For the respective legal basis of postconflict missions cf. Fox (note 70), 66. 88 5th recital of SC Res. 897 (1994), 4 February 1994: “Bearing in mind respect for the sovereignty and territorial integrity of Somalia in accordance with the Charter of the United Nations.” 89 J. L. Cohen, The Role of International Law in Post-Conflict Constitution-Making: Towards a Jus Post Bellum for “Interim Occupations,” New York Law School Law Review 51 (2006–2007), 497, 522.

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right to self-determination and its “ultimate responsibility”90 are unlawful under the UN Charter. Moreover, UN efforts within a collapsed state must be appropriate to bring internal self-determination to fruition. Yet these two benchmarks, plausible as they are, oversimplify the complex situation within a failed state. Too often, a unified nation or “people” qualified for internal self-determination does not exist because civil wars and ethnic conflicts have caused deep rifts within the population. When nationhood no longer provides the foundation of accepted public power, state-building measures may have no proper foundation.91 Vice versa, measures of nation-building may require previous efforts to create a state constitution and to establish some unified governmental structures that pool local authority.92 To a certain extent, UN state-building measures necessarily set the course for the political and economic future of the reinvigorated state and thus interfere with the people’s right to freely decide upon its political future and the economic system.93 At this point, it is evident that self-determination is not a rigid legal barrier for state rebuilding strategies. The conflicting duties of the UN – to respect the people’s right of internal self-determination and to restore sustainable state structures guaranteeing lasting peace and security – have to be balanced within the process of state-building.94 On the one hand, the people’s right of internal self-determination demands early participation and gradual empowerment of local actors as well as respect for legal and political traditions.95 On the other hand, it does not necessarily require early elections of a constituent assembly or other democratic institution if that strategy would foil the UN’s latter duty to work towards sustainable state structures. Depending on the circumstances within the failed state, it may be sufficient that, for the benefit of sustainability, popular vote subsequently legitimates already accomplished state-building measures. Seen from this angle, all laws and institutions that derive their legitimacy exclusively from the international mandate carry with them an inherent expiration date, to be replaced sooner or later by laws and institution based on the will of the people.96

90

Cf. 5th recital of SC Res. 897 (1994), 4 February 1994. Bogdandy/Häußler/Hanschmann/Utz (note 20), 585. 92 R. Wolfrum, International Administration in Post-Conflict Situations by the United Nations and Other International Actors, Max Planck UNYB 9 (2005), 649, 654. 93 Id., 680. 94 H. F. Kiderlen, Von Triest nach Osttimor. Der völkerrechtliche Rahmen für die Verwaltung von Krisengebieten durch die Vereinten Nationen, 2008, 298. 95 Herdegen (note 74), 70. 96 Cf. Stahn (note 75), 461. 91

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2. Law of Occupation and Human Rights Law The legal regime governing UN state-building missions is one of the controversial topics discussed in academia.97 It is beyond argument that the law applicable to UN state-building missions originates from many different sources, first and foremost the international mandate set out or endorsed by resolutions of the Security Council and substantiated by internal UN rules (e.g. rules of engagement). In some cases, the UN assumes administrative functions by international agreement concluded between member states. For example, the 1991 Paris Accord on a comprehensive political settlement of the Cambodia conflict set out wideranging powers for a UN administration (UNTAC) on behalf of the Supreme National Council of Cambodia.98 Apart from the legal framework designed for and confined to the UN mission, all UN organs have to comply with Charter-based rules (internal obligations) and – if applicable – general international law (external obligations). Today, it is a commonplace observation that the UN, the prototype of an international organization, possesses international personality and thus bears not only international rights but also international duties.99 Given that the UN is neither party to human rights treaties nor to the four Geneva Conventions and their Additional Protocols, international customary law is the main source of law to be observed by the UN (external obligations). In this context, the question arises whether the Security Council – when acting under Chapter VII – is empowered to overrule the organization’s legal obligations under customary law.100 This perception is difficult to dismiss although it is not explicitly prescribed by the UN Charter. The starting point of the legal argument is Art. 103 UN Charter. According to this provision, member states have to comply with their obligation under the UN Charter irrespec-

97 See, e.g., Stahn (note 75); Kiderlen (note 94); R. Wilde, International Territorial Administration, 2008. 98 Agreement on a Comprehensive Political Settlement of the Cambodian Conflict concluded between Australia, Brunei Darussalam, the Supreme National Council for Cambodia, Canada, China, India, France, Indonesia, Japan, Laos, Malaysia, the Philippines, Singapore, Thailand, the Union of Soviet Socialist Republics, the United Kingdom, the United States, Viet Nam and the Socialist Federal Republic of Yugoslavia, UNTS, vol. 1663, 27. 99 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, 179. 100 J. A. Frowein/N. Krisch, Introduction to Chapter VII, in: Simma et al. (note 47), vol. I, MN 27; generally on the issue Gill (note 71), 33.

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tive of conflicting international treaty obligations.101 The same applies to member states’ customary obligations by virtue of the purpose pursued by Art. 103 UN Charter in conjunction with Art. 25 and 48 UN Charter.102 If, for example, an ad hoc criminal tribunal established under Chapter VII demands the extradition of a head of state, member states must not deny this request with reference to their obligations under customary immunity law. By the same token, the UN tribunals are in the position to convict a head of state without violating customary immunity law simply because the criminal tribunal received its mandate under Chapter VII.103 The notion that Chapter VII measures may overrule conflicting international obligations otherwise incumbent upon the UN is less far-reaching than one may assume and certainly has its limits. First of all, ius cogens obligations remain sacrosanct under the UN Charter pursuant to Art. 53 Vienna Convention on the Law of Treaties. Secondly, the UN Charter does not give carte blanche to UN organs; only if the fulfillment of the mandated duties requires non-compliance with general international law obligations, a Security Council-authorized mandate will prevail over conflicting customary law. Finally, irrespective of whether the mandate is authorized under Chapter VII, the Security Council (as well as other UN organs) must comply with Charter-based rules. These internal obligations gain specific importance in the field of human rights law. If taken literally, Art. 1 para. 3 and Art. 55 UN Charter exclusively deal with the UN’s duty to promote and encourage member states’ respect for human rights. This one-way approach made perfect sense in times when only states exercised authority over individuals.104 Today, however, it is generally accepted that the UN acts within its functions and powers when performing governmental functions in situations that constitute a threat to peace and security. With a view to the evolving duties of the UN, its constituent instrument (in particular Art. 24 UN Charter with its reference to Art. 1 para. 3 UN Charter) has to be interpreted in a manner that streamlines emerging inconsistencies. Based on such a reassessment, the UN Charter prohibits UN organs from flouting human rights they require others to respect, especially those enshrined in 101 Art. 103 UN Charter makes also Security Council resolutions under Chapter VII prevail over other international obligations, Question of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. US), Order of 14 April 1992, ICJ Reports 1992, 114, 126, para. 42. 102 R. Bernhardt, Art. 103, in: Simma et al. (note 47), vol. II, 1298, MN 21; P.-M. Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, Max Planck UNYB 1 (1997), 1, 14; for a different approach see G. F. Watson, Constitutionalism, Judicial Review and the World Court, Harvard International Law Journal 34 (1993), 1, 25. 103 Cf. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, 3, para. 61. 104 Stahn (note 75), 466.

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the two International Covenants and in the Universal Declaration of Human Rights. It is a matter of consequence that, by the same token, the UN may restrict human rights on the basis and within the limits of limitation clauses. Whereas the human rights obligations of the UN can be anchored in the UN Charter by means of a “constitutional” interpretation of its provision, this approach must fail with regard to international humanitarian law. For whatever reason, the UN Charter is silent on that front.105 What remains is the external obligation of the UN to observe customary humanitarian law. After some hesitation,106 the UN Secretary-General recognized in 1999 the application of “fundamental principles and rules of humanitarian law” in enforcement actions or peace-keeping operations when the use of force is permitted in self-defense.107 Notably, however, no word can be found on the application of the law of occupation.108 This set of rules is of special interest when the UN administers governmental duties within a failed state. Traditionally, the law of belligerent occupation governs the acts of an occupying power that is in temporary control of foreign territory during or after an armed conflict.109 The UN’s task in failed states – performed in the interest of the international community – is hardly reconcilable with this definition. That may be one reason why the UN has never adopted a positive attitude in this regard. When the UN considered in 1957 administering the Gaza Strip after the withdrawal of Israeli forces, the question whether the UN should obtain the status of an occupying power was denied quite harshly: “The occupier has the duty […] of administering the country according to existing laws and existing rules of administration. […] [T]he foregoing is enough to indicate what the situation would be if the [UNEF] Force were an occupying army – which it is not, and which it has been stated explicitly it is not.”110 Irrespective of whether this argument is convincing, the UN 105

But see Stahn’s interpretation of the preamble of the UN Charter, ibid., 469. On the position of the ICRC see U. Palwanka, Applicability of international humanitarian law to United Nations peace-keeping forces, International Review of the Red Cross 33 (1993), 227. 107 Secretary-General’s Bulletin of 6 August 1999, Observation by United Nations forces of international humanitarian law, UN Doc. ST/SGB/1999/13. 108 M. Zwanenburg, The Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law: A Pyrrhic Victory, Revue de droit militaire et de droit de la guerre 39 (2000), 13, 23. 109 Fox (note 70), 222; for the UN’s approach prior to the 1999 Bulletin see B. D. Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations, Stanford Journal of International Law 33 (1997), 61, 87; K. Schmalenbach, Haftung Internationaler Organisationen, 2004, 348. 110 Brief on UNEF Function in the Gaza Strip, 8 August 1957, UN Archives N.Y. File No. S-0530-0101. Box DAG-13/3.11.0.0-202, cf. Schmalenbach (note 109), 357. 106

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always had problems classifying its forces as a “hostile army” in terms of humanitarian law. The aim of the UN’s presence in a failed state and the organization’s attitude is, however, no appropriate starting point for the determination of the legal regime governing UN rebuilding missions in failed states. The fact that the UN exercises governmental duties within a foreign territory without the consent of the affected state is arguably sufficient to apply customary occupation law.111 Due to the UN’s special purposes one may call the legal situation a “humanitarian occupation” as proposed by Gregory Fox.112 The label rightly indicates that the law of belligerent occupation may be subject to fundamental modifications. As elaborated above, the Security Council may overrule customary law obligations if this is deemed necessary to achieve the aim pursued by the enforcement measure,113 provided they do not have ius cogens character such as, e.g., the rules of humanitarian law protecting civilian life.114 In addition, the Security Council has to observe its Charter-based obligation to respect all human rights that are not superseded by humanitarian law (cf. Art. 4 International Covenant on Civil and Political Rights).115 Having said that, the Security Council is at liberty to reasonably deviate from Art. 43 of the Hague Regulations and Art. 64 Geneva Convention (GC) IV in order to introduce wide-ranging governmental and administrative reforms aimed at helping the failed state back on its feet.

III. Law Governing Rebuilding Efforts of Third States Most writers agree that in many regards the early US occupation practice in Iraq fell short of humanitarian law standards.116 Whether this is also true for the Coalition’s state-building measures depends largely on the interpretation of Secu-

111 Cf. M. Kelly, Restoring and Maintaining Order in Complex Peace Operations, 1999, 181; Stahn (note 75), 470; M. Sassòli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, European Journal of International Law 16 (2005), 661, 688; J. Saura, Lawful Peacekeeping: Applicability of International Humanitarian Law of United Nations Peacekeeping Operations, Hastings Law Journal 58 (2007), 479, 506. International jurisprudence affirms that de facto control is the critical factor for the application of the law of occupation, see ICTY, Appeals Chamber, Tadiü (note 65), para. 168. 112 Fox (note 70), 4. 113 Sassòli (note 111), 681, demands an explicit derogation of international humanitarian law. 114 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, para. 157. 115 Ibid., para. 106. 116 D. F. Scheffer, Beyond Occupation Law, AJIL 97 (2003), 842, 853–856.

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rity Council Resolution 1483 (2003).117 The Resolution, adopted under Chapter VII, acknowledged the status of the Coalition forces (“Authority”) as occupiers and called upon them “to work towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future.”118 Some authors interpret this passage as an authorization which goes beyond the powers assigned to occupying powers under Art. 43 of the Hague Regulations and Art. 64 GC IV.119 The overall concept of the Resolution indeed suggests this approach, given that the operative part starts with an appeal to member states and concerned organizations “to assist the people of Iraq in their efforts to reform their institutions and rebuild their country.”120 It seems to be a bit far-fetched that the Authority would have to administer external rebuilding activities by virtue of Chapter VII and, at the same time, must abstain from taking the lead by virtue of international humanitarian law. Irrespective of whether Resolution 1483 in fact furnished the occupying powers with special authority, it is inherent in the UN system that the Security Council has the power to do so. From the viewpoint of member states, Art. 103 UN Charter provides the necessary legal justification to deviate from Art. 43 of the Hague Regulations and Art. 64 GC IV for the purpose of fulfilling the UN approved state-building task.121 It goes without saying that the authorization necessarily mirrors the legal limits of the Security Council’s powers as pointed out above.122 It is undisputed that the Coalition’s military presence in Iraq was in fact a military occupation in terms of international humanitarian law. When the Security Council authorizes member states to perform security tasks in a failed state, the legal situation is less clear. Resolution 794 (1992), for example, authorized member states “to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.” Since the legal regime governing the forces’ conduct remained unaddressed, the troop-contributing states disagreed about the body of law applicable to their military presence in Somalia. The Australian UNITAF applied the law of occupation and, consequently, restored 117

SC Res. 1483 (2003), 22 May 2003. SC Res. 1483 (2003), para. 4. 119 R. Wolfrum, Iraq – from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference, Max Planck UNYB 9 (2005), 1, 16. 120 SC Res. 1483 (2003), para. 1. 121 Wolfrum (note 119), 16; for a different approach see Sassòli (note 111), 689; A. Orakhelashivili, The Post-War Settlement in Iraq: The UN Security Council Resolution 1483 (2003), and General International Law, Journal of Conflict & Security Law 8 (2003), 307, 309. 122 See supra C. IV. 118

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law and order pursuant to the requirements of Art. 43 of the Hague Regulations.123 In contrast, the US contingent refused to officially acknowledge the application of international humanitarian law.124 Under the premise that, as a rule, the UN itself is obliged to respect humanitarian law when implementing enforcement measures within a failed state, the US approach is difficult to justify. In the case of Somalia, the Security Council did not authorize the troop-contributing states to undertake wide-ranging state-rebuilding exercise within the territory under their de facto control. Thus, the legal limits imposed by Art. 43 of the Hague Regulations and Art. 64 GC IV fully apply. Besides, both provisions are flexible enough to allow the troop-contributing states pragmatic first-aid solutions when dealing with collapsed governmental structures.125 Due to the imperative needs in a failed state, these solutions may embrace the provisional reconstruction of local institutions.

E. Conclusion Whereas the total breakdown of state institutions is still exceptional, a great many states in whatever stage of weakness or fragility linger on the long road to state collapse. From the international law perspective, preventive measures of well-meaning third states do not take place in a legal vacuum. Depending on circumstances, the sovereign equality of states and the principle of non-intervention constitute the most important legal yardsticks to be considered when imposing preventive state-building measures upon the fragile state. External efforts to reconstruct state institutions and governmental powers after the final collapse have to observe first and foremost the relevant law of occupation and the people’s right of internal political self-determination. Especially the latter is a fundamental cornerstone of UN actions under Chapter VII when preventing and rebuilding failed states. Admittedly, to judge every single state-building measure in the light of the rather vague principle of self-determination seems to be a bit academic, especially when a consolidated, self-sustained state is the ultimate goal of the external rebuilding effort. However, self-determination is no end in itself. A legal “birth defect” of the revived state at the expenses of the whole nation may be the seed of the next decline.

123 124 125

Kelly (note 111), 39. Stahn (note 75), 472. Cf. Sassòli (note 111), 671.

Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres? By Dagmar Richter Considering that peace is the underlying condition for the full observance of human rights and war shall not be their negation …1

A. The Fragmentation of International Law Relating to Armed Conflict – An Introduction This article, once more,2 deals with the relationship between International Humanitarian Law (IHL) and Human Rights Law (HRL). The author suggests that it is still useful to thoroughly extract rules from international practice, with particular regard to the treaty-based systems that represent the most vital and trend-setting parts of international law. Those rules, which partly pertain to the applicability of treaties in a situation of armed conflict and partly to the relationship between norms, must be considered with a conjunctive view to their interactive effects. The author will explain why the classical perception of jurisdiction of the states being exercised on the basis of territorial “control” should be reconsidered. She also tries

1

Cf. International Conference on Human Rights (Tehran), Res. XXIII of 12 May 1968, first phrase of the Preamble, reprinted in: D. Schindler/J. Toman, The Laws of Armed Conflicts, 1988, 261–262. The original text reads: “Considering that peace is the underlying condition for the full observance of human rights and war is their negation.” 2 References to earlier articles will be made at the relevant points. A comprehensive bibliography including jurisprudence is given by B. Schäfer, Zum Verhältnis Menschenrechte und humanitäres Völkerrecht, 2006, 66–104. For a survey on the various theories on the relationship between IHL and HRL see, e.g., A. Guellali, Lex specialis, droit international humanitaire et droits de l’homme: leur interaction dans les nouveaux conflits armés, Revue Général de Droit International Public, 2007, 539–542.

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to elucidate that with regard to the relationship between IHL and HRL no conflicts of norms exist which would have to be solved. The issue has been programmed from the moment when Human Rights Law came into existence, because HRL, other than IHL, by nature is not related to a specific factual context such as “peacetime” or “armed conflict.” A hundred years after the Second Hague Peace Conference humanitarian law could have terminally lost its formerly exclusive position with regard to the protection of human beings in armed conflicts, and may even face some sort of creeping destruction by Human Rights Law, which represents the more recent category of international law. There is also a tendency towards broadening the human rights accountability in cases where states have been acting “extraterritorially” (outside of their own territories), which is particularly relevant to the applicability of norms in situations of international armed conflict and military occupation. If the states were bound by their human rights obligations no matter where and in which context they act, the nucleus of a world constitutional order would have been established. Today’s reality is far away from that. The following case, which is not meant to shed any light on a specific nation, only serves as a model that raises all sorts of questions. In 1999 hostilities took place in the Russian province of Chechnya. One day a “humanitarian corridor” was arranged for civilians to escape from the fighting. Among these were Mrs. Isayeva, her two minor children and her sister in law. At the end of the day she found all of her companions dead from shell wounds and her property totally destroyed, because the column of refugee cars had been repeatedly attacked by air-planes firing missiles to the ground. As the investigation by Russian Courts had led nowhere, Mrs. Isayeva brought her case to the European Court of Human Rights (ECtHR).3 Since 5 May 1998 Russia has been a state party to the Convention. As it has not deposited any Article 15-declaration, it has not validly limited the range of any freedoms of the Convention. Should that case be governed by humanitarian law or by human rights law or by both? Is a human rights court competent to interpret and apply humanitarian law? Are other international bodies competent to decide the same case? There are some good chances for ending up in three sorts of discrepancies: First, IHL and HRL could each be two self-contained regimes with different rules for the same case leading to disparate results. Secondly, two international courts could interpret the same rules either of IHL or HRL differently. And thirdly, both could happen in the same case. 3 ECtHR, Isayeva, No. 57950/00, Judgment of 24 February 2005; ECtHR, Isayeva, Yusupova and Bazayeva, Nos. 57947/00, 57948/00, 57949/00, 24 February 2005; see infra D. II. 3. a).

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The relationship between IHL and HRL apparently touches upon the nature and essence of international law. Disparate results can indicate what we call the fragmentation of international law.4 Fragmentation, however, is a negative notion indicating that separate spheres exist which are not being governed by any superior values or inter-linking conflict rules. Moreover, a fragmented legal order is a deficient legal order. For instance, international law may be qualified as fragmented if the discrepancies between its individual sections such as IHL and HRL cannot be explained reasonably. In contrast, consistency could be attained if there were any rules saying that one of the legal regimes or courts should have priority over the other, or that one provision should be interpreted in the light of the other. This leads us to the issue of “conflict rules,” with special regard to our subject.

B. Rules Governing the Relationship between Norms in International Law As the international community is a rather loose and poorly integrated entity, specific conflict rules governing the relationship between IHL and HRL practically do not exist. However, international law contains some general rules which may be helpful as well as certain “rules of consideration,” according to which the one sphere of law turns its attention to the other.

I. “Conflict Rules” in International Law 1. General Rules of Interpretation: Lex Specialis and Lex Posterior According to the lex specialis maxim or specialty rule the special rule supersedes the more general rule. Although such maxim is recognized as a general principle of international law according to Art. 38 (1) (c) Statute of the International Court of Justice (ICJ),5 the question remains whether this maxim actually applies to our 4

See, e.g., Report of the Study Group of the International Law Commission (finalized by M. Koskenniemi), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 of 13 April 2006. 5 See Guellali (note 2); A. Lindroos, Adressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis, Nordic Journal of International Law 74 (2005), 27–66; E. Vranes, Lex Superior, Lex Specialis, Lex Posterior – Zur Rechtsnatur der “Konfliktlösungsregeln,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), 391–405 (with English Summary).

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issue. Can IHL be considered as containing the more special rules, either generally or in certain respects? The answer to this has been greatly influenced by the jurisprudence of the ICJ, which, however, has shifted in the course of time.6 Literature, too, shows some signs of uncertainty by the proliferation of articles that tend to carefully limit the range of the specialty rule. According to the most representative position in contemporary legal studies the law of armed conflict is considered to operate as lex specialis which – not in general but rather in certain circumstances – can override conflicting obligations under “the law of peace.”7 On the other hand, the earlier position, according to which human rights law was to serve exclusively for peace time, whilst humanitarian law was to serve exclusively for war time, has disappeared,8 whereas the related conception of IHL forming a specialized “self-contained regime”9 with respect to HRL has no support. In contrast, there is a strong opposite view suggesting that the lex specialis maxim should not apply at all to normative conflicts between “unrelated normative orders” in a fragmented legal system such as that of international law.10 This article seeks to elaborate on this position.11 International law also comprises the lex posterior maxim.12 According to this maxim, the later rule has priority over the earlier rule, provided that both of them 6

See infra D. II. 1. See, e.g., C. Greenwood, Scope of Application of Humanitarian Law, in: D. Fleck (ed.), The Handbook of International Humanitarian Law, 2nd ed. 2008, 74, MN 253, 75, MN 256; L. Doswald-Beck, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?, International Review of the Red Cross (IRRC) 864 (2006), 861 (898–900, 903): “Specific, clear and well-established rules of IHL can be considered to be lex specialis.” The author, however, stresses that IHL does not provide all the answers with sufficient clarity. See also H. Krieger, A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study, Journal of Conflict and Security Law 11 (2006), 265 (270–273): lex specialis as a “contextual norm.” 8 Cf. R. Kolb, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, IRRC 324 (1998), 409–419. 9 See, generally, M. Koskenniemi, Study in the Function and the Scope of the Lex Specialis Rule and the Question of “Self-Contained” Regimes, UN Doc. ILC (LVI)/SG/ FIL/CRD.1 and Add. 1 of 4–7 May 2004; and id. (note 4), 65–100 (100), MN 193: “… the term ‘self-contained regime’ is a misnomer. No legal regime is isolated from general international law.” 10 See, e.g., Lindroos (note 5). 11 For further explanation see infra E. III. 1. 12 Cf. Art. 30 Vienna Convention of the Law of Treaties (VCLT). Generally see Vranes (note 5). 7

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deal with the same subject on the same level of generality. However, in treaty law this rule only applies if the parties, too, are the same.13

2. The Vienna Convention on the Law of Treaties a) Art. 30 VCLT The VCLT contains several provisions, which can be considered as declaratory of customary international law. Art. 30 VCLT entails a set of conflict rules pertaining to situations where successive treaties that relate to “the same subject-matter” would produce different results. The crucial question, however, is, whether and to what extent a human rights treaty and a humanitarian treaty are to be regarded as “successive treaties relating to the same subject-matter.” The drafting history of the provision indicates that the states’ representatives tended towards a restrictive interpretation of that notion: the provision, in particular, must not be applied if the conflict (incompatibility) of norms only results from the fact that the relevant norm of one treaty is more special than the conflicting norm of another treaty applicable to the same case.14 In other words: wherever the specialty rule applies, Art. 30 VCLT does not apply. If one does not apply the lex specialis maxim to the relationship between IHL and HRL,15 the problem of “sameness” becomes virulent. If it were answered in the affirmative, the earlier treaty (which often is the humanitarian treaty) would only apply to the extent that its terms are compatible with those of the later treaty (which often is the human rights treaty), provided that all states concerned are parties to both treaties.16 It is difficult to determine when treaties relate “to the same subject-matter.” As has been rightly observed, this question cannot be answered in the abstract but only by looking at the practical results.17 If two treaties, when applied to the same case, produce divergent results, indicating a conflict of norms – the existence of which is an implicit precondition of the application of Art. 30 VCLT18 – the later treaty prevails. To give an example: According to Art. 118 of Geneva Convention (GC) III 13

Art. 30 (4) VCLT. See F. Paolillo, Art. 30, in: O. Corten/P. Klein (eds.), Les Conventions de Vienne sur le droit des traités, Commentaire article par article, vol. II (2006), MN 26. 15 See, however, supra (note 8) and D. II. 1. 16 Art. 30 (3) and (4) (a) VCLT. 17 Paolillo (note 14), MN 30, proposes “un ‘test d’applicabilité.’” 18 Cf. Paolillo (note 14), MN 28. 14

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of 1949 all prisoners of war shall be released (only) after the cessation of active hostilities (duty to release), whereas later human rights law obliges the states to bring all persons arrested or detained promptly before a judge and to entitle them to institute proceedings by which the lawfulness of the detention can be examined speedily by a court.19 If Art. 30 VCLT were to be applied to the relationship between Art. 118 GC III and, e.g., Art. 5 European Convention on Human Rights (ECHR), the “notion of evolution” inherent in the concept of Art. 30 (3) and (4) (a) VCLT would become apparent, as the traditional practice of imprisonment in war time would be superseded by HRL. However, one cannot say that both provisions actually relate “to the same subject-matter”. Whilst Art. 118 GC III relates to the detainment or imprisonment of combatants during armed conflict, Art. 5 ECHR generally applies whenever a person is detained or imprisoned. Although both provisions could be considered to have a common core, this alone would not bring their relationship under Art. 30 VCLT, because this provision – as has been shown before – never applies if the conflict of norms merely results from the fact that one norm is more special or specific than the other.

b) Art. 31 (3) (c) VCLT Art. 31 (3) (c) VCLT provides that treaties shall be interpreted by taking into account “together with the context, … any relevant rules of international law applicable in the relations between the parties.” Interpretation thus shall produce effects only in accordance with existing law and not in ignorance of it,20 the underlying assumption being that parties, when entering into treaty relations, do not intend to act inconsistently with previous obligations.21 Consequently, the perspective matters. Undoubtedly, the younger instrument may be interpreted in light of the older one, provided that both are binding upon the parties concerned. On the other hand, the permissibility of the reverse rule, which is to interpret the older instrument in light of the younger one, has been challenged, because this can amount to a

19 E.g., Art. 5 (3) and (4) European Convention of Human Rights (ECHR), Art. 7 (5) and (6) American Convention of Human Rights (ACHR). 20 A. E. Cassimatis, International Humanitarian Law, International Human Rights Law, And Fragmentation of International Law, International and Comparative Law Quarterly 56 (2007), 623 (636–637). 21 M. E. Villiger, Art. 31, in: id. (ed.), Commentary on the 1969 Vienna Convention on the Law of Treaties, 2009, MN 25, with further references.

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“contemporary”22 or evolutionary23 interpretation, which ultimately modifies the earlier treaty.24 Despite the fact that later treaties very likely reflect the states parties’ contemporary will, international jurisprudence is not unanimous in this respect.25 The ICJ, without special regard to Art. 31 VCLT, stated in its Advisory Opinion on Namibia that “[a]n international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”26 However, in this opinion the ICJ explicitly referred to concepts embodied in treaties that were not static but were by definition evolutionary. In contrast, the ICJ (majority) in the Oil Platforms case27 used Art. 31 VCLT “as a peg on which to hang the whole corpus of international law on the use of force,”28 reading the provision as (allegedly) “incorporating the totality of substantive international law.”29 Although the majority’s position to consider “any” rules of international law has not remained undisputed,30 the ICJ tends to a broad consideration of international law when resorting to Art. 31 (3) (c) VCLT. If one applies this to our issue, the question arises whether the states, when entering into, e.g., a later human rights instrument thereby indicate their intention that this should also affect the interpretation of their preceding humanitarian treaties, or vice versa. Indeed, that can be argued in view of the many references to HRL which one finds in IHL.31 However, the adjudicatory practice shows that Art. 31 (3) (c) VCLT has been employed, e.g., by the Inter-American Commission of Human Rights 22

Formulation by Villiger (note 21), MN 24. Hermanas Serrano Cruz v. El Salvador, Inter-American Court of Human Rights (IACtHR), Preliminary Objections, 23 November 2004, Series C No. 118, para. 111; infra D. II. 2. b) cc). 24 See J.-M. Sorel, Art. 31, in: Corten/Klein (note 14), MN 42. 25 A survey is given by Sorel, ibid., MN 43–45. 26 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 (31), para. 53. 27 Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Reports 2003, 161, para. 41. 28 A. Aust, Modern Treaty Law and Practice, 2nd ed. 2007, 243. 29 Separate Opinion of Judge Higgins, Oil Platforms (note 27), 237, para 46. 30 R. Higgins, ibid., reminded the Court that Art. 31 (3) (c) VCLT also requires “the context” to be taken into account, which she understood to mean the specific type or character of the pertinent treaty (e.g., economic). This, however, is not convincing, because the term “together with the context” clearly refers to external circumstances but not to the character of the treaty itself. 31 See infra B. II. 3. 23

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(IAComHR), in the conventional way only, which is to interpret HRL in light of IHL.32 At this point we may preliminarily conclude that Art. 31 (3) (c) VCLT, in whatever way or direction it is used, will be relevant to the solution of our problem.33

3. Art. 103 UN Charter – a “Meta Conflict Rule”? According to Art. 103 of the UN Charter, obligations of the Members of the UN under the Charter shall prevail over their obligations under any other international agreement. Of course, this provision does not directly relate to conflicts between IHL and HRL norms but rather functions as a “meta conflict rule,” eventually superseding the superseding norm. This may become relevant in our context, because Art. 103 in the course of time has been extended from Charter obligations to Charter empowerments.34 According to the British House of Lords35 the provision legitimizes the violation of HRL if a military action is based on a binding Security Council Resolution. If, e.g., the Security Council “authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq …,”36 a system of internment in Iraq in order to respond effectively to security threats may be upheld,37 even if it clearly violates procedural human rights as well as humanitarian law. However, if we ask to what extent the Security Council itself must respect at least peremptory norms protecting individuals in armed conflict,38 the problem of relationship between IHL and HRL reappears. 32

See Coard, IAComHR, Rep. No. 109/99, Case 10.951, 29 September 1999, and infra D. II. 1. b). 33 Infra E. III. 2. 34 See R. Bernhardt, Article 103, in: B. Simma (ed.), The Charter of the United Nations, A Commentary, vol. II, 2nd ed. 2002, MN 9. 35 Al-Jedda, House of Lords, 12 December 2007, [2007] UKHL 58, in particular paras. 26–39; infra C. II. 2. d. 36 Security Council Res. 1511 (2003) of 16 October 2003, para. 13. 37 Example by Cassimatis (note 20), 636. 38 See Art. 24 (2) in conjunction with Art. 1 (3) UN Charter; see also Kadi, European Court of Justice (ECJ) Court of First Instance, Judgment of 21 Sept. 2005, T-315/01, paras. 224–232 (226): “None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.” This jurisprudence, however, was overruled (on other grounds!) by Kadi/Al Barakaat International Foundation, ECJ, Grand Chamber, Judgment of 3 September 2008, C-402/05 P and C-415/05 P.

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II. Reference Rules 1. Derogation Clauses in Human Rights Treaties Derogation clauses are important in our context, because their mere existence gives rise to the question whether states that could derogate from their human rights obligations but refrain from doing so should qualify for any kind of release from human rights responsibility. Almost all human rights treaties39 contain derogation clauses,40 which actually do not “refer” to humanitarian law but make room for its application. Such clauses, which either mention the case of war explicitly (e.g., IACHR, ECHR) or include it in the concept of “public emergency” (e.g., ICCPR), under certain conditions permit the states parties to derogate from their treaty obligations in time of emergency, but not with regard to certain rights. This clearly indicates that, firstly, the respective human rights treaty remains fully applicable in time of war as long as no derogation has been declared and that, secondly, even if it has been declared, certain core rights, particularly the right to life (except for the ECHR) and the prohibition of torture will continue to apply. However, a state has to fulfill certain preconditions, which on the one hand characterize the system of derogation as being “intelligently designed” and, on the other hand, deter the states from using it. These are: (1) States are obliged to formally notify the situation and to keep certain treaty organs continuously informed – which will put them under permanent surveillance; (2) the derogation will only be accepted if it is absolutely necessary and neither conflicts with other international obligations nor discriminates on suspect grounds (e.g., race, gender, religion, etc.). The most important aspect in our context is that other international obligations, in particular humanitarian law obligations, must not be affected. Even if derogation clauses may create a limited human rights vacuum, IHL will flow into it automatically.41 Furthermore, the permissible scope of the derogation will ultimately be determined by the ECtHR or other competent treaty body. 39

Art. 4 International Covenant on Civil and Political Rights (ICCPR), Art. 27 InterAmerican Convention on Human Rights (IACHR), Art. 15 ECHR, Art. 30 European Social Charter, Art. 4 Arab Charter on Human Rights. 40 Except the African Charter. 41 See Human Rights Committee (HRC), General Comment No. 29 on States of Emergency (Article 4) of 24 July 2001, ICCPR/C/21/Rev.1/Add.11, para. 3: “During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in Article 4 and Article 5, paragraph 1, of the Covenant, to prevent the abuse of a state’s emergency powers;” see also para. 9.

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As can be shown with respect to the ECHR, the drafters of derogation clauses were unable to predict the derogation policy of the states parties with respect to situations of armed conflict. According to Art. 15 (1), the states parties, under certain conditions, may take measures derogating from their obligations under the Convention “[i]n time of war or other public emergency threatening the life of the nation.” However, a state may only take measures, which “are not inconsistent with its other obligations under international law” – particularly under IHL, including above all the four Geneva Conventions.42 Art. 15 (2) ECHR limits the derogation further. The states parties must never depart from Art. 3 (prohibition of torture), Art. 4 (1) (prohibition of slavery) and Art. 7 (nulla poena sine lege). They may, however, interfere with Art. 2 (right to life), provided that death results from “lawful acts of war.”43 This formulation clearly refers to IHL. If a fatal act is lawful under IHL, it will also be lawful under Art. 2 ECHR, provided that, among other preconditions, a state of emergency has been notified.44 Otherwise, the state must establish that one of the grounds for justification mentioned in Art. 2 is applicable to the case. Interestingly enough, Art. 2 (2) (c) ECHR provides for justification only if an action has been lawfully taken for the purpose of “quelling a riot or insurrection,” whilst the provision does not say anything on “lawful acts of war.” Why is that so? Probably, the drafters of the ECHR were of the opinion that an Art. 15 declaration would always be notified in times of war but not necessarily in the case of “other public emergency.” Today it is accepted that in a situation of armed conflict the states will not be confined to derogation but alternatively may invoke Art. 2 (2) (a) ECHR relating to acts “in defence of any person from unlawful violence.”45 This practice corresponds to the fact that the states parties have not been eager to notify any kind of disaster to the Council of Europe. Art. 15 ECHR was, e.g., used by France in 1985, by Albania in 1997, and repeatedly by the United Kingdom46 and Turkey.47 In contrast, it has not been used by Russia with regard to the Chechnya conflict. Similar reluctance can be observed with regard to other human rights instruments. The United States of America has not derogated

42

H. Krieger, Notstand, in: R. Grote/T. Marauhn (eds.), EMRK/GG, Konkordanzkommentar, 2006, Chapter 8, MN 27. 43 See, in contrast, Art. 6 ICCPR. 44 Cf. Krieger (note 42), MN 32. 45 Infra D. II. 3. 46 See, e.g., A. and Others v. the United Kingdom, No. 3455/05, Grand Chamber, para. 11, with more details. 47 Krieger (note 42), MN 2, with references relating to various states.

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from the ICCPR nor from any other instrument, not even with respect to the socalled “war against terror.”48 Even where states have deposited a declaration of derogation, it is not only the derogation from a specific provision that must be justified by the exigencies of the situation, but also the specific measures taken pursuant to the derogation.49 This means that the principle of proportionality fully applies, so that no human rights provision will ever be entirely inapplicable.50 The Human Rights Committee (HRC) has also pointed out that crimes against humanity can never be justified under Art. 4 ICCPR and that the codification of such crimes in the Rome Statute of the International Criminal Court “is of relevance in the interpretation of Article 4 of the Covenant.”51

2. Most-Favorable-to-the-Individual-Clauses Human rights treaties often contain saving clauses such as, e.g., Art. 5 (2) ICCPR, 53 ECHR, 29 IACHR, saying that no provision must be interpreted as restricting the enjoyment of any other right conferred to the individual by any other convention or by customary international law. These most-favorable-to-theindividual-clauses guarantee that HRL does not disparage rights under IHL.

3. IHL References to HRL Approaching the issue from the humanitarian law perspective, a couple of general clauses come into focus which need to be concretized by human rights standards.52 Some of these deserve special consideration.

48

See Commission on Human Rights, Special Rapporteurs, Situation of detainees at Guantánamo Bay, E/CN.4/2006/120 of 15 February 2006, para. 83. 49 General Comment 29 (note 41), paras. 4–5; UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, paras. 51–57, reprinted in: Human Rights Quarterly 7 (1985), 3–14. 50 General Comment 29 (note 41), para. 4. 51 Ibid., para. 2; see also para. 13 sub (d). 52 See Th. Meron, The Humanization of International Law, 2006, 45–46, who speaks of “convergence” or “parallelism.” The author names a couple of provisions and concepts of IHL, which more or less refer to human rights, e.g. ,“civilized peoples” (common Art. 3), “generally recognized” (Art. 84 GC III), “discrimination,” etc.

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a) Common Art. 2 of the Geneva Conventions According to common Art. 2 of the Geneva Conventions the respective Convention shall apply not only to the very rare cases of declared war but to any other armed conflict as well as to all cases of occupation “in addition to the provisions which shall be implemented in peace-time.” By this formulation the Convention seeks to provide for the case that one or both of the parties deny the existence of a state of war.53 Such a denial shall not have the effect that only those provisions remain applicable which by nature have to be implemented in peacetime (e.g., Art. 127 GC III), but rather the Geneva Convention as a whole must be applied “in addition” to those provisions. As common Art. 2 GC explicitly refers to “the provisions” which shall be “implemented” in peacetime, it becomes clear that this article is neither intended to determine the applicability of any peacetime rules including HRL in armed conflict54 nor the relationship between HRL and IHL.

b) The Martens Clause and Its Successors According to the “Martens Principles of Humanity,” populations and belligerents, in cases not included in the Regulations annexed to the Second Hague Convention with respect to the laws and customs of war on land of 1899, remain under the protection of the principles of international law as they result particularly from the “laws of humanity.” Known as the Martens clause,55 the principles of humanity were inserted into the preamble of the Second Hague Convention. The clause was necessary, because no agreement could be reached on the legal status of resistance fighters and other irregular combatants. The first question is whether the explicit reference of the clause to “cases not included in the Regulations” must be understood today as indicating a mere subsid53

See Greenwood (note 7), 46–48, MN 202; International Committee of the Red Cross (ICRC), Commentary, Art. 2 GC IV, available at http://www.icrc.org/ihl.nsf/COM/380600005?OpenDocument (last visited 27 February 2009). 54 See Greenwood (note 7), 73–74, MN 252–253. 55 The Martens clause reads: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience”; for the original (French) version see Ministère des Affaires Ètrangères (ed.), Conférence international de la Paix (18 May–29 Juillet 1899), Protocol, Troisième Partie, 1899, 152, 196.

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iary function of HRL to IHL in times of war. In order to answer it one has to consider the time when the clause was formulated. Although it was not only inserted in the Second Hague Convention but also in later humanitarian law treaties (e.g., common Art. 3 GC, Art. 75 Protocol Additional to the Geneva Conventions (AP) I and Art. 4 AP II),56 it still reflects the standards of an era when human rights were not yet recognized. Thus it was not intended to restrict the applicability of HRL in wartime but only to fill a dangerous lacuna for the sake of humanity. This is underlined by the fact that, e.g., the Additional Protocols of 1977 do not only refer to the Martens principles but also to fundamental human rights.57 The second question is whether the principles of humanity, as addressed by the Martens clause and also by later provisions like Art. 3 GC, can be interpreted in the light of contemporary HRL. It is true that these principles originally were no more than vague concepts which even had to appeal to public conscience in order to gain any substance at all. One can argue that today, the concept of “humanity” should be determined by HRL, in particular by the core of fundamental rights (e.g., the prohibition of torture or racial discrimination), which even in a situation of armed conflict is neither subject to any derogation nor limitation. It is worth elaborating on this question with a view to Art. 31 (3) (c) VCLT.58

c) Explicit Human Rights Clauses in Humanitarian Law Treaties Art. 72 of AP I to the Geneva Conventions relating to the protection of civilian victims of international armed conflict reads in its essential part: The provisions of this Section are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention … as well as to other applicable rules of international law relating to the protection of fundamental human rights …

This provision has to be read in conjunction with Art. 4 GC IV, according to which only those persons shall be protected who find themselves in the hands of a party to the conflict or occupying power of which they are not nationals. Although Art. 72 AP I can be understood as referring to all major human rights treaties59 as 56

For details see H.-P. Gasser, International Humanitarian Law and Human Rights Law in Non-International Armed Conflict: Joint Venture or Mutual Exclusion?, German Yearbook of International Law (GYIL) 45 (2002), 149 (155 with note 13). 57 Infra B. II. 2. c). 58 Infra E. III. 2. b). 59 According to the ICRC, Art. 72 AP I namely refers to the ICCPR and the regional Conventions (IACHR, ECHR), see ICRC, Commentary, Art. 72 AP I, para. 2928, available

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well as to customary human rights law, its formulation remains vague as concerns the precise meaning of the “applicable” rules. “Other applicable rules” relating to the protection of fundamental human rights apparently refer to sources external to AP I.60 However, it does not clearly say when those rules of HRL become applicable. The formulation could be interpreted as referring to the fact that not all states are bound by the same human rights provisions. However, this understanding seems to be too narrow, as applicability may also depend on other factors such as, e.g., the territorial scope of a human rights treaty.61 The most convincing explanation is that Art. 72 AP I says nothing with regard to the application of human rights law.62 One can, however, conclude from the reference to “fundamental” human rights that only those rights are envisaged from which no derogation can be made.63 A different approach is taken by AP II relating to non-international armed conflicts. Its second preambular paragraph recalls that “international instruments relating to human rights offer a basic protection to the human person.” Although this paragraph has no binding effect, it can be relevant to the interpretation (cf. Art. 31 (2) VCLT) of the substantive provisions of the Protocol. While the “instruments” relating to human rights are obviously understood as offering no more than a “basic” protection, AP II claims to establish a more sophisticated or advanced – not a more specific (“special”) – protection. As the third preambular paragraph clarifies, the Protocol is meant to improve the basic protection, and not to do away with it, so that it does not claim for itself the benefit of the lex specialis maxim. Comparing both references to human rights, of AP I (international armed conflict) on the one hand and AP II (non-international armed conflict) on the other hand, one at http://www.icrc.org/ihl.nsf/COM/470-750093?OpenDocument (last visited 27 February 2009). See also C. Pilloud et al., in: Y. Sandoz/C. Swinarski/B. Zimmermann (eds.), Commentary on the Additional Protocols, 1987, 842–843, MN 2927–2929. 60 Cf. M. Bothe/K. J. Partsch/W. A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, 443: “… sufficiently broad to encompass the provisions of Part II of the Fourth Convention and of Human Rights Conventions binding on the Parties to the conflict.” 61 For the problem of “extraterritorial” application, which only pertains to treaty law, not to customary law, see infra C. II. 62 It goes too far to hold that since the Additional Protocols had acknowledged the application of human rights in armed conflict, the latter were recognized in international law, at least in principle. See, however, C. Droege, The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, Israel Law Review 40 (2007), 310 (316). 63 Cf. ICRC, Commentary (note 59), Art. 72 AP I, paras. 2931–2933.

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must conclude that the character of the conflict makes a difference. As long as an armed conflict is limited to one state (non-international), the latter remains bound by all human rights obligations it has accepted before; even if it invokes the derogation clause of a human rights instrument, the “basic protection” – as the second preambular paragraph of AP II puts it – will always remain effective. If, however, the civilians of one state are subject to the power of another state (international armed conflict), the protection of human rights fully depends on the applicability of such rights in “extraterritorial” situations. This is exactly why Art. 72 AP I provides for additional humanitarian rules.

C. The Applicability of Treaty Law (HRL and IHL) in Situations of Armed Conflict A conflict of norms may arise only, where both regimes, HRL and IHL, apply. In treaty law explicit clauses limit the scope of applicability of the treaty, which correspondingly limits the jurisdiction of the competent treaty body as well as the responsibility of the states parties. If an international body is established in order to decide on a case pertaining to armed conflict, it must have jurisdiction ratione personae with regard to the victim concerned, ratione materiae with regard to the matter and ratione loci with regard to the territory where the pertinent instrument generally or regularly applies. Whereas the applicability of a treaty and the jurisdiction of the respective treaty body relate to the admissibility, e.g., of an individual complaint, responsibility of a state for any violation of the treaty pertains to the merits of the case. As some of the cases show,64 these aspects can easily become intermingled.

I. Situation Assessment by Humanitarian Law Humanitarian (treaty) law usually defines the persons who shall be protected65 in the context of a specific situation, in which the respective instrument applies.66 64

See, e.g., Ilaúcu, ECtHR, Rep. 2004-VII, and Issa, ECtHR, No. 31821/96. See e.g., Art. 4 GC IV: Persons protected by the Convention are those who find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals; Art. 4 GC III on “prisoners of war.” 66 See, e.g., Art. 2 GC III: The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties; common Art. 3 GC: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties … 65

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The Geneva Conventions, e.g., apply “in all circumstances” (common Art. 1 GC), given that the specific preconditions concerning the person and the situation are fulfilled. International Criminal Justice links up with this, as all international criminal courts according to their Statutes are competent to decide on the responsibility of persons for serious violations of international humanitarian law.67 However, the jurisdiction of all ad hoc tribunals is limited to violations, which have occurred in a specific area at a specific time.68 With regard to these parameters of applicability it becomes clear that humanitarian law as such is not and can never be confined to the territory, where the state concerned usually has jurisdiction, but rather applies to historic situations on any (or named) territory with respect to a defined category of victims. This is, due to the fact that in the most eminent case of international armed conflict one of the warring parties necessarily acts outside of its territorial borders.

II. Territorial Limits and Openness of Human Rights Treaty Regimes In contrast, the responsibility of states under human rights instruments as well as the jurisdiction of the respective human rights bodies is limited ratione personae by clauses referring to victims “within their jurisdiction” (Art. 1 ECHR; Art. 2 Convention of the Rights of the Child) or “within its territory and subject to its jurisdiction” (Art. 2 (1) ICCPR)69 or, more open, “in any territory under its jurisdiction” (Art. 2 (1) United Nations Convention against Torture). These clauses, more or less, relate to the regular scope of responsibility. The states being territorial entities normally exercise jurisdiction in a defined territory and, thus, regularly have to bear responsibility for all human rights violations occurring in that territory, given that those can be attributed to them. It is in this area, where the state concerned has the power to effectively control its agents and implement its human rights obligations, even with regard to private actors, whereas outside of this territory, state action to implement human rights poses the risk of interfering with the territorial sovereignty of another state. The question, therefore, is whether and to what extent the provisions mentioned still leave some room for exceptions, accord67 The International Criminal Tribunal for the former Yugoslavia (ICTY), e.g., is competent to decide on grave breaches of the Geneva Conventions, violations of the laws or customs of war and genocide, Arts. 2–4 ICTY Statute. 68 See, e.g., Art. 1 ICTY Statute; Art. 1 Statute of the International Criminal Tribunal for Rwanda (ICTR). 69 See, in contrast, Art. 1 of the Optional Protocol to the ICCPR: communications from individuals subject to its jurisdiction.

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ing to which a state could become responsible for “extraterritorial” actions – in particular, military actions. It is widely accepted today that this, more or less, depends on whether a state exercises a sufficient degree of power and authority over persons outside of its national territory, as has been stated, e.g., by the “Meron formula”70 – which is related to the classical “agents theory” – or more recent doctrines.71

1. Art. 2 (1) ICCPR The wording of Art. 2 (1) ICCPR (“within its territory and subject to its jurisdiction”) appears to exude a strong territorial notion. This dates back to 1950, when the USA in the negotiation process managed to insert the formula “within its territory” into the Draft Covenant. The intent of the United States then was to ensure that it would not have to guarantee any Covenant rights to the citizens of the occupied territories, such as Germany,72 Austria and Japan.73 After opponents to this position as, in particular, France had failed in their efforts to replace this formula by the formulation “subject to its jurisdiction,” the final text ended up with the combination of both territory and jurisdiction.74 This ambiguity has led some

70 As Th. Meron, Extraterritoriality of Human Rights Treaties, AJIL 89 (1995), 78 (81), has put it: “Where agents of the state, whether military or civilian, exercise power and authority (jurisdiction or de facto jurisdiction) over persons outside national territory, the presumption should be that the state’s obligation to respect the pertinent human rights continues. That presumption could be rebutted only when the nature and the content of a particular right or treaty language suggest otherwise” (notes omitted). 71 See infra C. II. 1–3 and, generally, F. Coomans/M. T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, 2004. 72 Cf. Johnson v. Eisentrager, US Supreme Court, 339 US 763, 778 (1950), where the Court had denied access to the writ of certiorari, because the prisoners at Landsberg prison, Germany, “at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 73 For details see M. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, AJIL 99 (2005), 119 (123–124); M. J. Dennis/A. M. Surena, Application of the International Covenant on Civil and Political Rights in Times of Armed Conflict and Military Occupation: The Gap Between Legal Theory and State Practice, European Human Rights Law Review (E.H.R.L.R.) 6 (2008), 714 (726–727). 74 For further details see M. Nowak, CCPR Commentary, 2nd ed., 2005, Art. 2, MN 27.

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authors to the conclusion that the legislative history of Art. 2 (1) does not support a narrow territorial construction.75 As concerns the range of controversy, two constellations must be distinguished from each other. On the one hand, it is widely recognized today that a state is not accountable for violations of human rights perpetrated on its own territory if it lacks control or jurisdiction through no fault of its own, e.g., if it is subject to military occupation (“territory without jurisdiction”).76 On the other hand, it is still disputed whether the provision also covers the reverse case, where a state has jurisdiction whilst acting outside of its own territory (“jurisdiction without territory”). Despite the wording (territory “and” jurisdiction), which only seems to be unequivocal, the view, according to which the Covenant obligations only apply with respect to a state’s own territory,77 has lost its former predominance.78 The HRC started with a literal interpretation. In López Burgos v. Uruguay79 and Celiberti v. Uruguay80 it still held that the provisions of the Covenant do not apply extraterritorially in situations of armed conflict and military occupation. However, in these cases concerning the abduction of a state’s own citizens from a foreign territory the Committee relied on Art. 5 (1) of the ICCPR as an alternative legal basis for the extraterritorial application of the Covenant. It argued that it would be unconscionable to interpret the responsibility under Art. 2 of the Covenant so as to permit a state party to perpetrate violations of the Covenant on the territory of another State, which it could not perpetrate on its own territory. However, one member to the Committee did not find Art. 5 to be an adequate basis for extending jurisdiction but rather proposed to rely on Art. 2 ICCPR, which should not be interpreted too literally. As he explained in his individual opinion, the notion 75

Meron (note 70), 79, referring to M. J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights, 1987, 53. 76 Cf. Ilaúcu (note 64), para. 312 (infra C. II. 2 a), and Cyprus v. Turkey, ECtHR, No. 25781/94, 2001, para. 78. 77 See, e.g., D. Schindler, Human Rights and Humanitarian Law: Interrelationships of Laws, American University Law Review 31 (1982), 935 (939). 78 This development can be traced back to Buergenthal’s studies of the early eighties, which were later adopted by the HRC when the author became a member of this Committee. See Th. Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in: L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights, 1981, 72 (74). 79 López Burgos v. Uruguay, Communication No. 52/1979, UN Doc. ICCPR/C13/D/52/ 1979 (1981). 80 Celiberti v. Uruguay, Communication No. 56/1979, UN Doc. ICCPR/C/13/D/56/ 1979 (1981).

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“within its territory” (Art. 2 ICCPR) was not meant to grant states parties unfettered discretionary power to carry out attacks against their citizens living abroad, but rather to take account of objective difficulties which might impede the implementation of the Covenant in specific situations such as, in particular, the occupation of a foreign territory.81 This jurisprudence seems to be closely linked to a specific type of cases pertaining to attacks against a state’s own citizens on the territory of another state. In these cases personal sovereignty plays a crucial role. On the one hand, a state normally has jurisdiction over its nationals; on the other hand, this jurisdiction cannot easily be exercised on a foreign territory without interfering with the territorial sovereignty of the state concerned. As was rightly observed in literature, states in such a constellation should not be held responsible for violations of the human rights of persons over whom they have jurisdiction only on grounds of nationality, when such violations take place on a foreign territory “and are attributable to some other sovereign.”82 The condition mentioned last is indispensable, because only in this case a risk of diplomatic entanglement, which was among the motives for inserting a “territorial notion” into Art. 2 ICCPR,83 can actually occur. As a rule the state in which the violation took place is responsible for everything which happens on its territory. Even where the violation is attributable to a foreign state the territorial sovereign remains accountable for not preventing the violation of human rights on its territory, unless it was prevented from exercising territorial jurisdiction by that other state. However, there is no sense in distinguishing between attacks against a state’s own citizens on a foreign territory and attacks against foreign citizens on a foreign territory, because nationality, though it may establish a jurisdictional link between a person and a state, does not necessarily establish “jurisdiction.” In the course of time the variety of cases and reasons motivating a state to act extraterritorially, experiences of armed conflicts and deficiencies in the development of IHL have urged the HRC to develop a new and comprehensive concept of 81

Communications Nos. 52 and 56 (notes 76,77), appendices, individual opinion by C. Tomuschat. 82 Nowak (note 74), Art. 2, MN 28. Nowak’s reasoning is completely misunderstood by M. Dennis, Application of Human Rights Treaties Extraterriorially During Times of Armed Conflict and Military Occupation, ASIL Proceedings 2006, 86 (89), and id. (note 73), 125. Dennis, in his function of an attorney-advisor for the US State Department, has attributed Buergenthal’s (!) formulation, which is quoted by Nowak in a footnote, to Nowak himself and, furthermore, quoted Buergenthal’s reference to Tomuschat in a way as to suggest that Tomuschat had denied any exterritorial applicability of the ICCPR. The contrary is true, as can easily be discerned when reading Tomuschat’s text completely. 83 Cf. Nowak, CCPR Commentary (note 71), Art. 2, MN 27, with note 77.

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“jurisdiction.” In its General Comment No. 31 of May 2004 the HRC took the position that the Covenant rights must be available to all individuals “who may find themselves in the territory or subject to the jurisdiction of the State Party.”84 Ever since the HRC has argued that this principle also applies “to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstance in which such power or effective control was obtained …”85 Although the Committee was not consistent in the use of its formulations,86 it has left no doubt that the two parts of the jurisdiction formula of Art. 2 of the ICCPR (“within its territory and subject to its jurisdiction”) should not be understood as cumulative but rather as disjunctive. A few months later the ICJ in Legal Consequences of the Construction of a Wall applied the Covenant with respect to an area under belligerent occupation.87 Ever since international jurisprudence has mostly applied the “effective control test” to situations in which the problem arises whether to apply the Covenant extraterritorially.”88 Even state practice is gradually moving into this direction. It is true that, e.g., the United States of America has persistently denied the applicability of the Covenant outside its territory.89 The Netherlands, too, has clearly denied it with respect to Srebrenica,90 and some states like, e.g., Germany have remained reluctant to 84 HRC, General Comment No. 31 (Nature of the General Legal Obligation on States Parties to the Covenant), adopted on 29 March 2004 (2187th meeting), UN Doc. ICCPR/C/ 21/Rev.1/Add.13 (2004), para. 10. Emphasis added. See infra D. II. 1. b). 85 Supra (note 81). 86 This was sharply criticized by Dennis/Surena (note 73), 719 with note 21: “It is lamentable that the General Comment treats this provision in such a cavalier and inconsistent manner …” 87 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136; see infra D. II. 1. c), with references. 88 See infra C. II. and E. II. 1. 89 See, e.g., Statement by the United States Mission to the United Nations on behalf of the US Delegation to theHRC of 28 July 2006: “For example, the US has been clear since the Covenant was first negotiated by Eleanor Roosevelt in 1950 that it only applies in the national territory of a party. It does not, and never has, applied to the US military installations abroad,” available at http://geneva.usmission.gov/Press2006/0728IICCPR.html (visited on 1 February 2009); Dennis, then attorney-advisor for the US State Department (note 82), 86–90; see also AJIL 100 (2006), 948 (950); for the US position in 1950, see UN Doc. E/CN.4/SR.138 (1950), 10; for the new approach of the US Supreme Court with regard to Guantánamo Bay see Rasul, 542 US 466 (2004). 90 Replies of the Government of the Netherlands to the concerns expressed by the HRC of 29 April 2003, UN Doc. ICCPR/CO/72/NET/Add.1, para. 19 (2003).

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unequivocally adopt the HRC’s position, despite the fact that the Committee explicitly had urged her to do so.91 Nevertheless, it goes too far to maintain that any extraterritorial application of the ICCPR in a situation of armed conflict would ignore what the international community had agreed upon and in so doing would increase the gap between legal theory and state practice.92 What actually cannot be ignored is a strong tendency to accept the applicability of the Covenant at least in a situation of belligerent occupation,93 which must be regarded as the paradigm of overall control over foreign territory. What is more important: some national courts have handed down decisions deviating from their respective governments, thereby putting enormous pressure on the latter. When a national court opens access to the national court system, either with respect to Covenant rights or with respect to constitutional rights, the diplomatic position not to accept any responsibility for extraterritorial activities becomes untenable. After the House of Lords had delivered a series of remarkable decisions relating to the ECHR, the Government of the United Kingdom has accepted extraterritorial 91 Concluding observations of the HRC of 4 May 2004, ICCPR/CO/80/DEU, para. 11: “The Committee notes with concern that Germany has not yet taken a position regarding the applicability of the Covenant to persons subject to its jurisdiction in situations where its troops or police forces operate abroad, in particular in the context of peace missions. It reiterates that the applicability of the regime of international humanitarian law does not preclude accountability of States parties under Article 2, paragraph 1, of the Covenant for the actions of its agents outside their own territories.” Germany, however, avoided a clear answer. See Response by the Government of the Federal Republic of Germany to para. 23, first sentence, of the concluding observations of the HRC to the fifth periodic report of Germany under Article 40 of the ICCPR, dated 30 March 2004, ICCPR/CO/80/DEU: “Pursuant to Article 2, paragraph 1, Germany ensures the rights recognized in the Covenant to all individuals within its territory and subject to its jurisdiction. Wherever its police or armed forces are deployed abroad, in particular when participating in peace missions, Germany ensures to all persons that they will be granted the rights recognized in the Covenant, insofar as they are subject to its jurisdiction. Germany’s international duties and obligations, in particular those assumed in fulfillment of obligations stemming from the Charter of the United Nations, remain unaffected. The training it gives its security forces for international missions includes tailormade instruction in the provisions of the Covenant.” For a critical comment on Germany’s position see K. Stoltenberg (former representative of the German Government at the ECtHR), Auslandseinsätze der Bundeswehr im menschenrechtlichen Niemandsland?, Zeitschrift für Rechtspolitik 2008, 111–115. 92 See Dennis/Surena (note 73), 731. 93 See, e.g., Legal Consequences of the Construction of a Wall (note 87), infra D. II. 1. c); Report on the Situation of Human Rights in Kuwait Under Iraqi Occupation, submitted by W. Kälin, Special Rapporteur of the Commission on Human Rights, UN Doc E/CN.4/ 1992/26; W. Kälin (ed.). Human Rights in Times of Occupation: The Case of Kuwait, 1994.

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application also of the Covenant, given that there is a clear and undisputable situation of control with regard to a specific victim.94 On the other hand, it is not quite clear whether British courts would also accept human rights responsibility with regard to a larger territory outside the UK. At least, they seem to apply a very rigid measure of “control” in this respect. The Supreme Court of Israel sitting as High Court of Justice held in the Mara’abe case (2005) that the international conventions on human rights such as the Covenant apply in the occupied Palestinian territory.95 Even the Supreme Court of the United States in Rasul (2004) and Boumediene (2008) has found it necessary to grant non US-citizens imprisoned in Guantanamo Bay, Cuba, the constitutional right of access to US courts.96 This jurisprudence might have at least an indirect impact on the United States’ international obligations. In theory, the extraterritorial application of constitutional rights may be affirmed while the extraterritorial application of a human rights treaty may still be denied. This is even true if the same effective control test is applied with regard to the very same situation. However, such kind of distinction reveals that the USA does not adhere to a consistent concept of extraterritorial jurisdiction but rather proclaims that it simply will not be bound by international legal instruments when acting extraterritorially.

2. Art. 1 ECHR At first view Art. 1 ECHR seems to be more suited to extraterritorial application than Art. 2 ICCPR. However, the European Court of Human Rights has interpreted Art. 1 ECHR in a way as to confine the ultimate territorial range of the Convention to the so-called European espace juridique which comprises the territory of all the Convention states.97 This will say that the Court affirms jurisdic94

See the UK’s Sixth Periodic Report of 18 May 2007, ICCPR/C/GBR/6, para. 59 b: “Although the language adopted by the Committee [in its General Comment No. 31] may be too sweeping and general, the Government is prepared to accept, as it has in relation to the application of the ECHR, that, in these circumstances, its obligations under the IICCPR can in principle apply to persons who are taken into custody by British forces and held in British-run military detention facilities outside the United Kingdom.” For the House of Lords jurisprudence see infra C. II. 2. d). 95 Mara’abe, HCJ 7957/04, para. 27. 96 Rasul (note 89); in: Boumediene, 553 US K (2008), the Supreme Court held that “[i]n every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States” (referring to J. Kennedy, conc., in Rasul, 480). 97 Bankoviü, ECtHR, Rep. 2001-XII, para. 80.

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tion ratione personae if the state party concerned has interfered with the Convention rights of a victim on its own territory or on the territory of another state party, but regularly denies jurisdiction if a violation was committed “out of area.” Although there is, with particular regard to cases dealing with armed conflict, some saying that the jurisprudence of the ECtHR was not fully consistent,98 it actually is much more consistent than it appears to be.

a) States Exercising Control over the Territory of Another State Party: Inside the European espace juridique In the context of northern Cyprus, the ECtHR started to employ the criterion of control, according to which a state acting outside its own territory has jurisdiction in foreign territories over which it has control, whereas the European Commission of Human Rights (EComHR) had more tended towards what is called the “agents’ theory.”99 As the northern part of Cyprus was not any longer under the control of Cyprus so that the latter could not continue to guarantee the Convention rights there, the Court argued with a “regrettable vacuum in the system of human-rights protection.”100 The inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards which they had previously enjoyed. As Turkey had assumed effective overall control over the relevant territory, Turkey instead of Cyprus became the state having “jurisdiction” in the sense of Art. 1 ECHR. As the ECtHR explained in the Loizidou judgment (1996): 98 Lord Rodger of Earlsferry observed in Al-Skeini, House of Lords, 2007, UKHL 26, para. 67, that “the judgments and decisions of the European Court do not speak with one voice.” 99 See Chrysostomos, Papachrysostomos and Loizidou, EComHR, D.R. 68, 216 (244), para. 32: “The Commission recalls that the application of the Convention extends beyond the national frontiers of the High Contracting Parties and includes acts of State organs abroad.” The fundament was laid in Cyprus v. Turkey, EComHR, D.R. 2, 125 (136), para. 8: “In Art.1 of the Convention, the High Contracting Parties undertake to secure the rights and freedoms defined in Section 1 to everyone ‘within their jurisdiction’ (in the French text: ‘relevant de leur juridiction’). The Commission finds that this term is not, as submitted by the respondent Government, equivalent to or limited to the national territory of the High Contracting Party concerned. It is clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad.” 100 Cyprus v. Turkey (note 76), para. 78.

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…, although Article 1 … sets limits on the reach of the Convention, the concept of “jurisdiction” under this provision is not restricted to the national territory of the High Contracting Parties. … Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.101

Ever since the idea that “jurisdiction” under specific circumstances takes priority over “territory”102 has grown strong roots. In the case of Ilaúcu (2004), e.g., the ECtHR affirmed that the Russian Federation had jurisdiction with regard to the Transdniestrian part of the Moldovan territory, because the Russian army, without participating in the military operations itself, had supported the separatists in Transdniestria. Despite the fact that neither Moldova nor Russia had exercised effective control over the relevant (separatist) area, the Court considered that there had been “a continuous and uninterrupted link of responsibility” on the part of the Russian Federation, because the latter had made no attempt to put an end to the human rights violations taking place on the respective territory.103 Apparently, the Court spoke of responsibility in order to establish jurisdiction, thereby invoking a “responsibility to protect.” Two aspects are essential for the understanding of this decision: First, that the alleged violations were perpetrated on the territory of another state party (Moldova) to the Convention, which itself could not be held accountable, because it had lost control in the separatist area. Secondly, Russia had neither gained nor wanted any control over the relevant area so that it could not be said to have taken over jurisdiction from Moldova. However, it had made a major contribution to the establishment of the irregular situation, in the course of which Moldova had lost jurisdiction. If under these circumstances jurisdiction were not transferred to Russia, the result would have been a “regrettable vacuum in the system of humanrights protection”104 to the detriment of the Moldovan population, which continuously should be secured the entire range of substantive rights of the Convention. 101

Loizidou, ECtHR, Preliminary Objections, A 310, para. 62; Loizidou, ECtHR, Rep. 1996-VI, para. 52; Manoilescu and Dobrescu, No. 60861/00, para. 101; for further details see J. A. Frowein, The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, Israel Yearbook on Human Rights 28 (1999), 1 (2–8). 102 Frowein (note 101), 6. 103 Ilaúcu (note 64), paras. 310–319, 376–393; according to J. Cerone, Human Dignity in the Line of Fire: The Application of International Human Rights Law During Armed Conflict, Occupation, and Peace Operations, Vanderbilt Journal of Transnational Law 39 (2006), 1447 (1486), the ECtHR in this case created the criterion of “indirect control,” thereby blurring the issue of jurisdiction with the merits of the case, 1487, 1489. 104 Cyprus v. Turkey (note 76), para. 78.

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With regard to this the ECtHR in Ilaúcu transferred the Cyprus principles to a case concerning the failure to act.

b) Outside the European espace juridique Outside the European espace juridique a “regrettable vacuum in the system of human-rights protection”105 is hardly to be found. As the ECtHR made clear in the Bankoviü case (2001), the Federal Republic of Yugoslavia at the time of the alleged violations clearly did not fall within this legal space and, as the Convention was “not designed to be applied throughout the world,”106 the Convention was not applicable. Regarding “the special character of the Convention as a constitutional instrument of the European public order” the Court acknowledged an “essentially regional vocation of the Convention system.”107 However, it did not totally exclude extraterritorial jurisdiction. As the Court explained in Bankoviü, the exercise of extraterritorial jurisdiction by a contracting state can exceptionally be established if the respondent state, “through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.”108 In all other cases “the ordinary and essentially territorial notion of jurisdiction”109 will prevail. If one applies this “normality test” to the case, the outcome becomes more reasonable, for striking the (own) territory by air force does not belong to the powers normally to be exercised by any Government. Consequently, no foreign power could take over jurisdiction in that way. In other words: by airstrikes alone a territory could not be controlled as being demanded by Art. 1 ECHR, because air(-force) supremacy could not provide for the territorial control necessary. After all, there was no jurisdictional link between the victims and the respondent states so that the victims could not come within the jurisdiction of the respondent states. Of course, this decision and also the “legal space argument” as such were criticized,110 because the Court thereby made clear that the human rights as set out in the Convention do not represent legal values that the states parties idealistically 105

Ibid. Bankoviü (note 97), paras. 79–80. 107 Ibid., para. 80. 108 Ibid., para. 71. 109 Ibid., paras. 61, 67. 110 See, e.g., Cerone (note 103), 1493: continuing vitality of the legal space argument is questionable. 106

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would accept in order to guide all their activities but rather constitute a (privileged) regional espace juridique. Thus the guarantees proclaimed, with regard to the territorial aspect, have no absolute but rather a relative or functional character in the sense that they can be ignored outside the espace juridique. Such a position potentially undermines the credibility of the European Human Rights system, at least in cases where the ECHR is not imposed on a foreign sovereign which has not accepted it. In the Issa case (2004) the Court at least acknowledged that effective overall control of a particular portion of the territory of Northern Iraq by the Turkish army might have engaged the responsibility of the contracting party concerned.111 As the Court put it, accountability under these circumstances “stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (…).”112 In this case the Court once more invoked responsibility in order to establish jurisdiction as it had already done before in Ilaúcu. One should note, however, that the “Issa principles”, too, enshrine the element of territorial control as well as the fiction of a state acting like on its own territory (normality rule). In contrast, no such fiction could be construed in Bankoviü, because bombing a territory is not the same as gaining jurisdictional control over it. In the case of Saddam Hussein (2006)113 the ECtHR once more accepted the view that the former Iraqi president could have come within a Convention state’s jurisdiction because of his detention in Iraq.114 However, it declared the application inadmissible, because it could not be established that the respondent states had jurisdiction on the sole basis that they formed part of a coalition with the US, when the impugned actions were carried out by the US, when security in the relevant zone was “assigned” to the US and when the overall command of the coalition was vested in the US. On the one hand, this decision gives the impression that the European institutions were not very eager to save Saddam Hussein’s life. On the other hand, there, indeed, was no specific action which could be attributed directly to one of the 111

Issa (note 64), paras. 70–71, 74. According to Cerone (note 103), 1491, the ECtHR in this case seemed “to resurrect the power and authority standard.” 112 Issa (note 64), para. 71. The same argument was used by the HRC in López (note 79), para 12.3., and Celiberti (note 80), para 10.3. 113 Saddam Hussein, ECtHR, No. 23276/04, 2006. 114 See also Öcalan, ECtHR, Rep. 2005-IV, para. 91: “It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.”

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states parties to the ECHR. Even if agents of a contracting state had participated in the capture of Saddam Hussein, it could have been argued that mere abetment cannot establish “jurisdiction” in the sense of Art. 1 of the ECHR, as this concept – other than responsibility in the form of “complicity”115 – relates to a status of full control, particularly when it comes to the application of the Convention outside the European espace juridique. However, if any of the states parties to the ECHR, e.g., had rendered Saddam Hussein to the US troops in Iraq, the question of responsibility of that state and, accordingly, of jurisdiction would have arisen in a similar way as it did in the Soering case. In this case the ECtHR had found that although the contracting states are not required to impose Convention standards on other states, these considerations could not absolve them from responsibility under Art. 3 ECHR.116

c) Control Being Exercised by an International Organization A particular question is whether applicants may come within the jurisdiction of a Convention state if that state participates in a joint military action outside of its own territory or, with special respect to Europe, outside of the European espace juridique. Two constellations have to be distinguished from each other. The first group of cases is characterized by the fact that the acting states, allegedly, lack control. In the Bankoviü case, e.g., the ECtHR declined to accept the position that the most massive use of military force would suffice in itself to establish control but instead resorted to the “normality test.”117 According to this test it is not the intensity of power that establishes “control,” but rather the mode of exercising power. However, the exercise of effective control by an international organization is conceivable. The second group of cases is characterized by the fact that control is exercised by an International Organization, which, however, cannot be held accountable. For instance, Mr. Saramati was arrested by UNMIK (UN Mission in Kosovo) police officers by order of the commander of KFOR (Kosovo Force). Although the exercise of control is not doubted in such circumstances, the ECtHR found in Behrami and Saramati (2007)118 as well as in Stephens (2008)119 that the UN Security Council retained ultimate authority and control so that the impugned action (or in the case 115

Cf. Art. 16 ILC Draft Articles on State Responsibility. Soering, ECtHR, A 161, 1989, para. 68. 117 See supra C. II. 2. b. 118 Behrami and Saramati, ECtHR, Grand Chamber, Nos. 71412/01 and 78166/01, paras. 121 et seq., 140. 119 Stephens against Cyprus, Turkey and the United Nations, ECtHR, No. 45267/06, 2008. 116

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of Behrami inaction) of KFOR was to be attributed to the UN alone120 and not to the NATO states cooperating with the UN. Unfortunately, the United Nations could not be made accountable, as it neither was a party to the ECHR nor could be deprived of its overall immunity. Theoretically, the Court could have held the states parties involved responsible for neglecting their duty to supervise the Organization, or for transferring competence to the latter without properly securing the respect for human rights. However, the ECtHR refused to apply the Bosphorus principles121 to the transfer of sovereign power to the UN, because in Bosphorus national authorities had acted on the basis of an EC Regulation which, in turn, transformed a Security Council Resolution, whilst in Behrami and Saramati the impugned (in)activities were said to be “directly attributable to the UN.” As the UN clearly has no operational command over any troops sent by the UN member states to any KFOR operation but only determines the strategic guidelines,122 the crucial question is whether operational command by the individual states over the troops or rather the trusteeship123 conferred to these states by the territorial state and the Security Council should be relevant in order to determine the holder of control. Taking into consideration that the local activities, which are the most likely to touch upon human rights, remain under the control of the individual states, responsibility must be regarded as the rule and irresponsibility as the exception. If the decision-making power rests with a particular state party to the Convention, the basic assumption should be that the latter either bears the responsibility for the impugned act itself or transfers it to an international organization in a way as not to undermine any kind of responsibility.124

120

As concerns the similar problem in European Community Law cf. Kadi and Kadi and Al Barakaat International Foundation (note 38). 121 See Bosphorus Hava Yollari Turizm Ve Ticaret Anonim ùirketi, ECtHR, No. 45036/ 98, paras. 152–156. According to these principles absolving contracting states completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention. However, the transfer of sovereign power is justified as long as the relevant international organization is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. 122 Cf. R. Kolb/G. Poretto/S. Vité, L’application du droit international humanitaire et des droits de l’homme aux organisations internationales, 2005, 46, 53. 123 M. Bothe, Humanitäres Völkerrecht und Schutz der Menschenrechte, Humanitäres Völkerrecht 21 (2008), 4 (8), opines that the power executed by KFOR has been conferred by the trustee and thus would not be governed by the ECHR but rather by universal human rights law. 124 See infra E. II. 1.

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d) State Practice: The Jurisprudence of the House of Lords States are quite reluctant to accept any responsibility for military actions out of area. However, the House of Lords in Al-Skeini and Others (2007) broke ranks by holding that the family of a victim, who was brutally mistreated and died in detention at a British military base in Basra (Iraq), was entitled to an independent, impartial and thorough investigation into the circumstances under the UK’s Human Rights Act 1998 and the ECHR.125 Applying the Bankoviü principles the majority of the Lords found that the United Kingdom had jurisdiction in Iraq, as far as the alleged violation took place in a prison camp run by British troops, but not where persons were shot dead by British military patrols in the Basra area where the British troops did not have effective control. Although there was no doubt that the United Kingdom remained bound by humanitarian law and applicable customary law, jurisdiction under Art. 1 ECHR (and, accordingly, the national Human Rights Act) was prerequisite for being granted access to the British Courts. In contrast, Hilal Al-Jedda126 was held in administrative detention by the British Forces in Basra for three years, when the British troops were part of the MultiNational Force authorized by UN Security Council Resolutions. In this case the House of Lords was tempted to completely transfer responsibility to the UN as the ECtHR did in Behrami and Saramati, but rightly refrained from doing so, because the situation in Iraq was considered to be essentially different from that in Kosovo. The majority held that the United Kingdom had jurisdiction and, consequently, had to ensure that the detainee’s rights under the Convention would not be infringed to a greater extent than is inherent in such detention. However, the UK might lawfully, where it was necessary for imperative reasons of security, exercise the power to detain under UN Security Council Resolution 1546 and successive resolutions. The House of Lords added that where the UK, in order to maintain peace and security, was obliged to act – if necessary in violation of human rights (except ius cogens) – the decisions of the Security Council superseded human rights obligations by virtue of Art. 103 of the UN Charter. This ruling has the potential of relativating the British position. On the one hand, British courts affirm full responsibility with regard to detention cases, on the other 125 Al-Skeini, House of Lords, Judgment of 13 June 2007, UKHL 26; for a comment see T. Thienel, The ECHR in Iraq – The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence, Journal of International Criminal Justice 6 (2008), 115–128. See now Al-Skeini, ECtHR, No. 55721/07 (communicated). 126 Al-Jedda (note 35), in particular paras. 26–39. See now Al-Jedda, ECtHR, No. 27021/08 (communicated).

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hand, release the government from it when it comes to the participation of British troops in joint activities under Chapter VII of the UN Charter. This distinction is doubtful, because the necessity of setting aside human rights on grounds of Art. 103 of the UN Charter does not permit having due regard to the individual case.

3. A Common View on “Jurisdiction”? As the jurisprudence of all human rights bodies shows, jurisdiction is presumed if a state acted on its own territory. In contrast, if a state, e.g., in the context of an international armed conflict, acted outside of its territory, jurisdiction becomes exceptional. It can then be based on additional elements indicating that the state had gained effective control over the respective person or the respective area by its military agents, or that there is any other special ground for accountability.127 Under such circumstances “jurisdiction takes priority over territory.”128 The ECtHR has underlined the regional character of the ECHR, which is considered to be the core element of the ordre public européen: If the impugned act was committed on the territory of another state party to the Convention, no issue of extraterritoriality arises at all. Rather, the question will be whether such act can be attributed to the respondent state. If, in contrast, the respective act was committed outside the regional espace juridique (extraterritoriality in the European sense), a special “jurisdictional link” must be construed. The latter will be denied regularly, but not without exception. What gives rise to an exception is the existence of “effective control,”129 a criterion which is applied by the ECtHR (in cases out of area only), by the IAComHR,130 and which is also supported by the HRC (General Comment No. 31) with regard to any violation of the Covenant being 127

See, e.g., Bankoviü (note 97), para. 61. Frowein (note 101). 129 O. Ben-Naftali, The Extraterritorial Application of Human Rights to Occupied Territories, in: ASIL Proceedings, 2006, 90 (93), assumes the debate to be shifted from “territory” to “effective control.” Droege (note 62), at 330, points out that the notion of effective control comes very near to the notion of “established and exercised” authority in Art. 42 of the Hague Regulations of 1907. Cerone (note 103), 1473, derives from the formulation “acts done by a State in the exercise of its jurisdiction” as being applied by the ICJ in Legal Consequences of the Construction of a Wall (note 87), para. 111, that the ICJ would employ a more specific or more narrow standard of jurisdiction than the HRC; he points out that the ICJ seems to apply a single standard for all human rights treaties , ibid., 1477. 130 Coard (note 32), and infra D. II. 2. a) bb), and Detainees at Guantánamo Bay, IAComHR, Decision on Request for Precautionary Measures of 12 March 2002, and infra D. II. 2. a) ee). 128

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perpetrated on the territory of another state, no matter if that state is a state party to the Covenant or not. As judicial practice shows, effective control of a state party will be affirmed if there is a specific pattern of control and if, additionally, certain conditions are met: – Agents of the respondent state exercised either total control over an individual person as in the case of detention (personal control) or overall control over a territory or parts of it (territorial control); and – the impugned action can neither be characterized as a minor form of participation in a joint military action, nor is it “directly” attributable to an international organization or to a third state not being a state party to the respective human rights Convention (autonomous action); – the respondent state exercised jurisdiction in a manner that is comparable to the administrative, adjudicatory or legislative forms, by which it normally131 exercises jurisdiction on its own territory (“normality rule”);132 and – the control pertains to everybody on the relevant area or place. It must not be confined to a specific situation (e.g., extraterritorial killing133) but constitute a status that lasts for a certain period of time (e.g., running a detention camp). It is true that the overwhelming majority of states has not yet accepted the view that they could be bound by human rights Conventions when performing a military mission outside of their territory, or even outside of the European espace juridique.134 However, except for the US courts it is quite likely that national courts by applying, e.g., the Covenant in certain extraterritorial situations will 131

See Schäfer (note 2), 28: comparable or regular character (with further references). A jurisdictional link could be established by running a detention camp but not by airstrikes. For an instructive definition of ‘jurisdiction’ see Ben-Naftali (note 129), 92: The term jurisdiction “signifies the ability to rule, to exercise the powers of government vis-àvis individuals who are affected by these powers.” 133 Droege (note 62), 334–335, tends to the opposite position, according to which the killing of a person must necessarily mean ultimate control. This is correct. However, not any sort of control establishes (extraterritorial) jurisdiction. 134 Affirming, however, Sweden, Switzerland and the League of Arab States in their written statements to the ICJ in Legal Consequences of the Construction of a Wall (note 87). See Schäfer (note 2), 24, with references, also pertaining to Poland and Italy. Too optimistic Droege (note 62), 324, according to whom “international jurisprudence – through the development of treaties, resolutions, acceptance of jurisprudence, decisions of national courts – has now accepted the application of human rights in times of armed conflict, both international and non-international.” 132

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compel their respective governments to give up their resistance against such application. This has already been the case in the UK. Even then it is very unlikely that national courts will fully accept the HRC’s position. Rather, they will limit the extraterritorial application of human rights treaties to cases of occupation (Israel) or detention (UK).

D. The Relationship between HRL and IHL in Practice I. Applying Law Other than the Law Specific to a Court’s Jurisdiction Given that an international tribunal has limited jurisdiction (supra C.), the question arises, according to which principles such tribunal may apply law other than the law specific to its jurisdiction.135 This question can only be answered by considering the full range of case law.

1. The Application of Humanitarian Law by Human Rights Bodies The UN Security Council, the General Assembly and many other organs once and again have called upon the states to respect “the applicable international humanitarian and human rights law.”136 Furthermore, there are numerous resolutions, e.g., of the former Human Rights Commission, or statements of special (human rights) rapporteurs condemning the violation of both human rights and humanitarian law, even if they were not given a humanitarian law mandate.137 It should be noted, however, that at least some of the rules of IHL apply erga omnes.138 However, the situation is different when a human rights treaty body is dealing with a situation that relates to both IHL and HRL. If, e.g., the HRC or the ECtHR has jurisdiction, there are, theoretically, two methods of employing IHL: the respective organ could either be authorized to only consider humanitarian law when 135 L. Bartels, Applicable Law Before International Courts and Tribunals (forthcoming at Oxford University Press). 136 Cf., e.g., UN Security Council Res. 1851 of 16 December 2008 (incidents of piracy and armed robbery at sea off the coast of Somalia), para. 6. For more examples see Droege (note 62), 314–316. 137 See, e.g., Meron (note 52), 50–51. A survey is given by D. O’Donnell, Trends in the Application of International Humanitarian Law by the United Nations Human Rights Mechanisms, IRRC 1998, 481. 138 See Legal Consequences of a Wall (note 87), para. 157.

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interpreting HRL, or even decide on whether there has been a breach of such law. In other words: it can either use a humanitarian norm as a mere source of interpretation or directly apply it. The first alternative – to only consider IHL as an interpretative context – relates to the legal sources which may be applied in whatever function (cf. Art. 31 (3) (c) VCLT). The second alternative – establishing that there has been a violation – relates to competence: has a human rights treaty body the power to go beyond the treaty whose implementation is entrusted to it? We would not really think of that, but international practice can be surprising in that respect.139

2. The Application of Human Rights Law by International Criminal Courts The experiences of World War II have led the world community to the conclusion that the effective punishment of war crimes is indispensable for the protection of human rights. This is not only reflected by the so-called Nuremberg Principles but also by later documents as, e.g., the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968)140 and, last not least, by the Rome Statute of the International Criminal Court. As has been rightly observed, human rights law may play an important role before international criminal tribunals, when it comes to the definition of terms and concepts such as, e.g., “torture.”141 While this attributes to human rights a merely indirect function, the International Criminal Court may directly apply human rights law at least in a subsidiary function.142 This is due to the fact that international criminal justice is not focusing on a selection of specific rights, which should be guaranteed to certain persons, but rather to specific crimes, which – generally spoken – should be covered by all kinds of law available. Accordingly, the relationship between IHL and HRL or the conflict of norms might be different in the various types of international jurisprudence.

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See infra D. II. 2. a) aa). Adopted by General Assembly Res. 2391 (XXIII) of 26 November 1968. According to the Preamble of this Convention “the effective punishment of war crimes and crimes against humanity is an important element in … the protection of human rights and fundamental freedoms …” Though the Convention entered into force on 11 November 1970, it has never been supported broadly by the states. 141 Meron (note 52). See, however, infra D. II. 4. a). 142 Infra D. II. 4. b). 140

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II. Jurisprudence 1. ICJ: Learning About the Limits of Lex specialis a) Nuclear Weapons (1996) The International Court of Justice (ICJ) presented its legal view on the relationship between HRL and IHL in 1996 in the Nuclear Weapons opinion,143 with special regard to Art. 6 ICCPR (right to life): The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.144

This passage first of all has to be regarded as a turning point at which the ICJ started to draw the consequences from what has been clearly expressed by provisions like Art. 4 ICCPR and was on the agenda of the United Nations since the early sixties.145 Human rights protection does not cease in times of war; a state may only derogate from some of its obligations. With this opinion, international jurisprudence started to abandon the classical theory of segregation, according to which human rights law was to serve for peace time while humanitarian Law was to serve for war time.146 143

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226. 144 Ibid., para. 25. For the opposite position see, e.g., Doswald-Beck (note 7), 903. 145 As to earlier efforts see, e.g., the Preamble of UN Security Council Res. 237 of 14 June 1967, which related to the territories occupied by Israel in the Six Days War: “Considering that essential and inalienable human rights should be respected even during the vicissitudes of war”; International Conference on Human Rights (Tehran), Res. XXIII of 12 May 1968, reprinted in: Schindler/Toman (note 1), 261–262; UN GA Res. 2444 (XXXIII) of 19 Decem ber 1968: “Respect for Human Rights in Armed Conflicts,” reprinted in: Schindler/Toman (note 1), 263–264. See also Report of the Secretary-General on the “Respect for Human Rights in Armed Conflicts,” UN Doc. A/8052 (1970). An instructive survey of the development is given by Droege (note 62), 312–317 (with further references). 146 Cf. R. Kolb, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, IRRC 324 (1998), 409–419.

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Studying the ICJ’s formulation thoroughly, one can easily discern that the Court did not speak of IHL as generally having priority over HRL as the applicable lex specialis147 but rather referred to the interpretation of the term “arbitrary” in the restricted field of justification. “Namely” IHL would provide the legal substance to fill that term, thereby superseding any other sources. Accordingly, the “applicable” lex specialis can be, e.g., the law applicable in armed conflict, for this law is specially designed to regulate the conduct of hostilities. It shall be the applicable law with special regard to the right not to be arbitrarily deprived of one’s life, all the more since Art. 4 ICCPR is not among the provisions a state can derogate from. This means that the ICJ even in this decision did not speak of applying the lex specialis rule in whatever form it may appear148 but rather proposed a special form of harmonizing interpretation,149 which only indirectly implies speciality. IHL is assumed to be more special with regard to any third provision or standard which might also provide guidance for interpreting the open term “arbitrary.” To be more precise: the applicable lex specialis is not applied with regard to the relationship between Art. 6 ICCPR and the applicable IHL norm but rather with regard to any third norm or principle which may also contribute to the interpretation of Art. 6 ICCPR.

b) The Likely Impact of General Comment No. 31 of the Human Rights Committee In March 2004 the HRC addressed the relationship between HRL and IHL in its General Comment No. 31 on the nature of the general legal obligation imposed on states parties to the Covenant. Referring to Art. 2 ICCPR the HRC stated that the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.150

147

Cf. Koskenniemi (note 9), 57, para. 104. See also Greenwood (note 7), 45, 75, MN 256. 148 See, e.g., Krieger, (note 7), 268–270: “Special norm as an application of the general norm in specific circumstances or special rule as an exception to the general rule.” 149 Cf. Guellali (note 2), 544: “rapproche contextuelle.” 150 HRC, General Comment No. 31 (note 84).

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This approach, which was sharply criticized in literature,151 obviously differs from the one the ICJ had chosen in Nuclear Weapons. In contrast to the ICJ the HRC explicitly refers to the methods of interpretation, speaking of a “specific” character of humanitarian rules rather than of a relationship governed by lex specialis. The Committee focuses on the Covenant rights as the sole basis for its decision, whereas IHL is considered as an interpretative background to be read into the individual provisions of the Covenant as far as possible. This means that, first, the specific nature of “certain” human rights can either increase or reduce the relevance of rules of IHL in the field of interpretation, and, secondly, as a precondition those rules must have a “more specific” character if they are to be considered. Until now, the Committee has not yet referred to IHL in practice, particularly not in its views on individual communications.152

c) Legal Consequences of the Construction of a Wall (2004) and Armed Activities on the Territory of the Congo (2005) A few months after General Comment 31 was published by the HRC, the ICJ started to modify its Nuclear Weapons approach in the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.153 In this opinion the ICJ, while referring to its earlier opinion added: More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law, others may be exclusively matters of human rights law, yet others may be matters of both these branches of international law.154

In this context, the ICJ stated that several human rights provisions had been violated by Israel, in particular Art. 12 (1) ICCPR. As this provision, in contrast to Art. 6 (1) (right to life), does not contain any open term like “arbitrary,” IHL could not flow into that provision in the same way as in Nuclear Weapons. Though Art. 12 (3) was mentioned, the Court did not even try to attribute to the open terms of the 151 See Dennis, ASIL Proceedings 2006 (note 82), 90, according to whom the Committee’s position in its General Comment No. 31 is “at odds with the plain meaning of Article 2 (1), the practice of states that have ratified the Covenant, and the original intent of the negotiators”; id., (note 73). 152 Doswald-Beck (note 7), 882. For the more recent cases see homepage of the UN High Commissioner for Human Rights at http://tb.ohchr.org/default.aspx . 153 Legal Consequences of the Construction of a Wall (note 87). 154 Ibid., para. 106.

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justification clause (“necessary to protect national security, public order …”) a similar function as it had attributed to the wording of Art. 6 ICCPR (“arbitrary”) in Nuclear Weapons. Although it could have decided that what was necessary in that sense “falls to be determined by the applicable lex specialis,” namely, the law applicable in a situation of occupation which is designed to regulate the treatment of civilians, it did not do so. Instead, the ICJ held that both Art. 12 (1) ICCPR as well as Art. 49 (6) GC IV had been violated, as one of the aspects of the case (liberty of movement of the inhabitants of the Occupied Palestinian Territory) was covered by human rights law, while another (construction of the wall and its associated regime) was covered by Geneva Convention IV. Accordingly, the ICJ held in Armed Activities on the Territory of the Congo (2005)155 that there had been violations of international human rights law as well as of international humanitarian law. One cannot say that the Court actually changed its concept but rather learnt that the doctrine it had established in Nuclear Weapons was too specifically geared to Art. 6 ICCPR so that it could not simply be transferred to other types of violations. Two problems still unforeseen in Nuclear Weapons had to be faced in subsequent cases, the first being that other human rights clauses lack any open term like “arbitrary,” the second being that IHL lacks specific norms which according to their nature could reasonably be considered as leges speciales. It is obvious that these modifications were inspired by the HRC thesis of the two spheres of law, HRL and IHL, being complementary. However, mentioning three possible variants, namely the application of only IHL, of only HRL, and of both, without formulating criteria for deciding which to apply in a specific situation, is not really helpful.

2. Inter-American Human Rights Bodies: From the Establishment of Violation to the Mere Consideration of IHL a) Inter-American Commission of Human Rights aa) The Early “Substantive Overlap” Doctrine: Abella (1997) and Other Similar Cases In the Americas the relationship between HRL and IHL has long been a major issue,156 particularly since 1997. In that year the IAComHR adopted several re155 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168, paras. 215–221. 156 For a survey see C. McCarthy, Human Rights and the Laws of War Under the American Convention on Human Rights, E.H.R.L.R. 6 (2008), 762–780.

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ports, according to which the states concerned had not only violated the InterAmerican Convention on Human Rights but also IHL, namely common Article 3 of the Geneva Conventions. Findings of this kind appear in a series of cases, namely Avilán et al. v. Columbia,157 Hugo Bustíos Saavedra and Alejandro Arce v. Peru,158 Abella v. Argentina,159 Severiano Santiz Gomez et al. v. Mexico,160 Lucio Parada Cea et al. v. El Salvador161 and Jose Alexis Fuentes Guerrero et al. v. Columbia.162 It is worthwhile to look at some selected details of these reports. E.g., in the Avilán case, the Commission concluded that “[t]he evidence submitted in this case supports the petitioners’ claim that the victims were executed extrajudicially by state agents in a clear violation of Common Article 3 … as well as the American Convention.”163 It should be noted that common Art. 3 GC is mentioned first. However, in Abella v. Argentina the Commission explained more thoroughly that it “must necessarily look to and apply definitional standards and relevant rules of humanitarian law as sources of authoritative guidance in its resolution of … claims alleging violations of the American Convention in combat situations.”164 Nonetheless, it followed the same approach as in Avilán by concluding that the killing in Abella “did not constitute violations of the American Convention or applicable humanitarian law rules.”165 As these examples show, the Commission was not only of the opinion that the American Convention and humanitarian law instruments are to be applied concurrently but also that the Commission itself was competent to decide on violations of the Geneva Conventions. This is difficult to justify, for Art. 44 of the American Convention only entrusts the Commission with competence relating to “denuncia157 Avilán et al. v. Columbia, Rep. No. 26/97, Case 11.142, 30 September 1997, IAComHR 444, OEA/ser.L/V/II.98, doc.6 rev. (1998). 158 Hugo Bustíos Saavedra and Alejandro Arce v. Peru, Rep. No. 38/97, Case 10.548, 16 October 1997, IAComHR 753, OEA/ser.L/V/II.98, doc.6 rev. (1998). 159 Abella v. Argentina, Rep. No. 55/97, Case 11.137, 18 November 1997, IAComHR 271, OEA/Ser.L/V/II.98 doc.6 rev. (13.4.1998). 160 Severiano Santiz Gomez et al. v. Mexico, Rep. No. 48/97, Case 11.411. 18 February 1998, IAComHR 637, OEA/ser.L/V/II.95, doc.7 rev. (1997). 161 Lucio Parada Cea et al. v. El Salvador, Rep. No. 1/99, Case 10.480, 27 January 1999, IAComHR, OEA/Ser.L/V/II.95 Doc. 7 rev. (1998). 162 Jose Alexis Fuentes Guerrero et al. v. Columbia, Rep.61/99, Case 11.519, 13 April 1999, IAComHR 466, OEA/ser.L/V/II.95, doc.7 rev. (1998). 163 Avilán (note 157), para. 134. 164 Abella (note 159), para. 161. 165 Ibid., para. 188.

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tions or complaints of violations of this Convention.” Trying to explain its activism the Commission pointed out that both the American Convention on Human Rights and Common Art. 3 of the Geneva Conventions were “substantively overlapping”166 and that both were “essentially pure human rights law.” Consequently, no additional burden would be imposed on the states parties if common Art. 3 was applied.167 This substantive argument, however, completely ignores the formal character of competence. If the like character of the respective law would establish competence, the Commission could also claim competence to decide on national fundamental rights law, given that it is essentially pure human rights law. It is not surprising that this position had to be abandoned sooner or later.

bb) The “Common Nucleus” Doctrine: Coard (1999) Reacting to harsh criticism the Commission in 1999 introduced a more sophisticated approach in the Coard case.168 This case deals with the treatment of civilians which were detained by the US intervention forces in Grenada in 1983. It is among the very rare cases relating to a military intervention in another state, which constitutes the international character of the conflict. As the US had not ratified the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man had to be applied. The first question pertained to the issue of extraterritorial application. Was the US subject to the obligations following from the Declaration when acting on the territory of Grenada? The Commission affirmed this by using the criterion of control, which the US undoubtedly exercised.169 Applying Art. 78 GC IV, which provides for procedural safeguards against detention, the Commission explained that the potential application of one does not exclude or displace the other. There is an integral linkage between the law of human rights and humanitarian law because they 166

Commenting on this, L. Moir, Law and the Inter-American Human Rights System, Human Rights Quarterly 25 (2003), 182 (193–194). 167 Cf. Abella (note 159), para. 158, with note 19, and Avilán (note 157), para. 172. 168 Coard (note 32). 169 Ibid., para. 37: “[E]ach American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state’s territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad.” See also Armed Activities on the Territory of the Congo (note 155), para. 220.

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share a “common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.”170

Ever since, the “common nucleus and common purpose formula” has become the standard for a series of cases. In difference to the earlier cases, the Commission from now on refrained from any direct use of IHL but rather referred to Art. 31 (3) (c) VCLT, according to which an international instrument must be interpreted and applied within the overall framework of the law in force.171 It concluded: [I]n a situation of armed conflict, the test for assessing the observance of a particular right … may, under given circumstances, be distinct from that applicable in time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis … In the present case, the standards of humanitarian law help to define whether the detention of the petitioners was “arbitrary” or not under the terms of Article I and XXV of the American Declaration.172

This reminds us very much of the findings of the ICJ in Nuclear Weapons, which the Commission apparently adopted in Coard.

cc) Conjunctive Approach: Ellacuría, S.J. (1999), Monsignor Romero (2000) In 1999 the Commission started to move a little bit back in two cases dealing with the extrajudicial killing of clerics by the armed forces of El Salvador. In the Ellacuría case173 the Commission referred to the Tadiü jurisprudence of the ICTY when finding that El Salvador had violated the right to life as contained in Article 4 of the American Convention “together with the principles recognized in common Article 3 of the Geneva Conventions.”174 This was understood as “marking a return to the more direct enforcement”175 of humanitarian law. The same conjunctive approach was employed in the case of Monsignor Romero,176 the Archbishop of San Salvador, who was killed by a death squad. In this case the Commission formulated: “El Salvador has violated … Article 4 of the American Convention, in conjunction with the principles codified in common Article 3.” 170

Coard (note 32), para. 39, with further references (emphasis by the author). Ibid., para. 40. 172 Ibid., para. 42 (emphasis by the author). 173 Ellacuría, Rep. No. 136/99, Case 10.488, IAComHR 608, OEA/Ser.L/V/II.106 doc.3 (1999). 174 Ibid., para. 237. 175 Moir (note 166), 205. 176 Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Rep. No. 37/00, Case 11.481, 13 April 2000, IAComHR 671, OEA/Ser.L/V/II.106 doc.3 rev. (1999). 171

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However, if a provision is applied in conjunction with another one, this means that it is applied directly. It probably was for that reason that the Commission did not speak of Article 3 but of the “principles codified in” common Article 3. The Commission did not assume two separate violations of international law but one breach of human rights law read together with certain principles of humanitarian law. This approach can be understood as a predecessor or transitory approach leading to the later “interpretative approach.”

dd) Interpretative Approach: Riofrío Massacre, Columbia (2001) In 2001, the Commission again refrained from the direct application of IHL. This was in the Riofrío Massacre case177 dealing with the extrajudicial execution of thirteen individuals by the Columbian army, where the Commission limited its competence to ascertaining whether a state has violated the American Convention. As the Commission put it in this case: Article 4 of the American Convention establishes that … no one shall be arbitrarily deprived of his life. It is also important to note that intentional mistreatment, and particularly extrajudicial execution of civilians under the control of one of the parties in any kind of armed conflict is absolutely prohibited in all circumstances in light of the basic considerations of humanity reflected in common Article 3 of the Geneva Conventions. In the present case, the available evidence shows … that there was no justification whatsoever to deprive them of their lives in light of the standards of present international law.178

Therefore, the Commission concluded that the victims were arbitrarily deprived of their lives, in violation of Article 4 of the American Convention. Although it obviously used the standards of common Article 3 in order to interpret the relevant human rights provision, it did so by resorting to the “important to note” formula. This leaves the function, in which common Article 3 was considered, utterly undetermined.

ee) Subsidiary Approach: Detainees at Guantánamo Bay (2002) A very special case concerns the detainees at Guantánamo Bay. In March 2002 the Inter-American Commission on Human Rights indicated precautionary mea177

Riofrío Massacre, Colombia, Rep. No. 62/01, Case 11.654, 6 April 2001, IAComHR 758, OEA/Ser.L/V/II.111 doc.20 rev. (2000). 178 Ibid., paras. 54–55.

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sures against the United States179 obliging the latter to clarify the legal status of the detainees and to afford them the legal protections commensurate with that status, which should in no case fall below the minimum standards of non-derogable rights. Confirming the Coard principles the Commission added: … where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law.180

These findings relate to irregular fighters not being combatants. They should be ensured the benefits “at least” of the non-derogable human rights if humanitarian law does not provide for protection. This means that irregular fighters would not only enjoy the benefits of the Martens clause, which according to the original intent leaves to such persons no more than the absolute minimum of humanity, but the full range of human rights, unless and so far as the state concerned has not derogated from these rights. As the United States did not properly react to the requests, the Commission expressly stated that it has the competence and the responsibility to monitor the human rights situation of the detainees at issue and in so doing to look to and apply definitional standards and relevant rules of the international humanitarian law in interpreting and applying the provisions of the Inter-American human rights instruments in times of armed conflict.181

At this point the Commission’s various approaches were consolidated. Ever since it has become clear that IHL may provide “definitional standards” and should be considered for that purpose.

b) Inter-American Court of Human Rights According to Art. 62 (3) of the ACHR the Court is only competent to decide on the interpretation and application of the Convention. In contrast, Art. 64 (1) provides that the member states of the Organization of American States “may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.” It follows from both that the Court is quite cautious in contentious cases, while it finds itself authorized to directly apply humanitarian law if it acts as a consultative body. If

179 180 181

Detainees at Guantanamo Bay (note 130). Ibid. IAComHR, Communication of 23 July 2002.

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the IACtHR considers any other treaty, it does not matter whether such treaty has been adopted within the framework of the Inter-American system.182

aa) Las Palmeras (2000) In early 2000 the Inter-American Court decided on Las Palmeras v. Colombia,183 rejecting the Commission’s position. This case deals with the extrajudicial killing of civilians by the armed forces of Columbia. Whereas the Commission had asked the Court to declare that Columbia had violated Art. 4 of the Convention and common Art. 3 of the Geneva Conventions, the Court found that it is also competent to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible with the American Convention … The latter has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions.184

According to this approach, the Geneva Conventions are to be considered if being employed by the state (!) in order to restrict human rights. As this approach considers humanitarian law only in the function of a law which limits individual human rights for the sake of any public interest, it does not comprise the option to directly examine any violation of humanitarian law with regard to the complainant’s position. The Court considers the functions both spheres of international law may have with respect to its own competence. Whereas human rights law provides the basis (public order clause), humanitarian law can substantiate the needs of public order in armed conflict. However, the mere fact that a military action is in perfect concordance with humanitarian law will not automatically justify it. Rather, compatibility with IHL is a minimum condition, which necessarily needs to be fulfilled, whilst the Court reserves its competence to review the “permitted” action according to the provisions of the Inter-American Convention. The Court, by examining whether any norm of international law, e.g., humanitarian law as applied by a state in times of armed conflict, “is compatible with the American Convention,” necessarily attributes to the Convention rights a higher rank than to the norms of IHL. This reminds us of the status that constitutional rights use to have within the legal order of a state.

182

See Moir (note 166), 198–199, referring to IACtHR, Advisory Opinion OC-1/82 of 24 September 1982. 183 Las Palmeras v. Colombia, Preliminary Objections, 4 February 2000, para. 33. 184 Ibid., paras. 32–33.

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bb) Bamaca-Velasquez (2000) Nine months after Las Palmeras, in Bamaca-Velasquez v. Guatemala the IACtHR further specified its jurisprudence: Although the Court lacks competence to declare that a State is internationally responsible for the violation of international treaties that do not grant it such competence, it can observe that certain acts or omissions that violate human rights, pursuant to those treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and, in particular, common Article 3. Indeed, there is a similarity between the content of Article 3, common to the 1949 Geneva Conventions, and the provisions of the American Convention and other international instruments regarding non-derogable human rights (such as the right to life and the right not to be submitted to torture or cruel, inhuman or degrading treatment). This Court has already indicated in the Las Palmeras Case (2000) that the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention.185

At first view, this holding seems to be contradictory. On the one hand, the Court feels competent to decide whether a state party also violated “other international instruments.” The reason given for this (all instruments are made for the protection of the individual) reminds us of the “common nucleus” doctrine of the Commission in Coard. On the other hand, the provisions of the Geneva Conventions may be considered only as “elements for the interpretation” of the American Convention. Both pieces, however, can be put together. The violation of humanitarian law, which the Court might have detected, contributes to the interpretation of the Convention. This becomes clear if one thinks of open terms like “arbitrary” or justification clauses relating to the needs of public order.

cc) Serrano Cruz Sisters (2004) This case deals with the disappearance of two children who were captured by soldiers during an internal armed conflict in El Salvador. After the two very young girls had vanished in the early eighties, their fate remained totally unclear, as there was no proper investigation in the case. The Court expressly rejected El Salvador’s position that humanitarian law as an exceptional emergency law must be applied in the function of the applicable lex specialis.186 Instead, it found that there is a relationship of the complementarity type (complementariedad) between the two 185

Bamaca-Velasquez v. Guatemala, IACtHR, Judgment of 25 November 2000, paras. 208–209. 186 Hermanas Serrano Cruz (note 23), para. 111. See also Judgment of 29 March 2005.

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spheres of law. It also reiterated its jurisprudence, according to which all persons, during internal or international armed conflict, are protected by the provisions of international human rights law, such as the American Convention, and by the specific provisions of international humanitarian law. The specificity of the provisions of international humanitarian law did not prevent the “convergence and application of the provisions of international human rights law embodied in the American Convention and other international treaties.”187 Rather, HRL had “full” validity (plena vigencia) in armed conflict, either of a non-international or international character.188 “Convergence,” as was repeatedly mentioned by the Court could be produced by interpreting the Inter-American Convention in the light of other international treaties ratified by the respective state, in accordance with Art. 31 (3) VCLT. It is worthwhile to note that the Court in this context recurred to the concept of “evolutionary interpretation” of the Convention,189 for this could enable the Court to go beyond the limits of traditional humanitarian law. It is true that the Court said no more than that the method of evolutionary interpretation of human rights treaties permitted resort to humanitarian law in order to determine the scope of the Convention. This method, however, keeps the door open. The rules of IHL may flow into the interpretation of human rights provisions and may help to define the legal terms enshrined in these provisions, but the outcome will ultimately be determined with a view to the exigencies of an evolutionary interpretation of human rights treaties. This would result in a judgment that is more than the bare implantation of the minimum standard of humanity from humanitarian law into human rights law.

c) Analysis If one considers the practice of the Inter-American human rights bodies, it becomes evident that almost all cases concerning non-international armed conflicts are dealing with extrajudicial killings or disappearances. This intrinsically reflects the history of many Central and South American states during the last decades. Art. 6 ICCPR, which prohibits the “arbitrary” deprivation of life, has been used 187 Ibid., para. 112: “En este sentido, la Corte destaca que la especificidad de las normas de protección de los seres humanos sujetos a una situación de conflicto armado consagradas en el Derecho Internacional Humanitario, no impide la convergencia y aplicación de las normas de Derecho Internacional de los Derechos Humanos consagradas en la Convención Americana y en otros tratados internacionales.” 188 Ibid., para. 113. 189 Ibid., para. 119.

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mostly in such cases. Accordingly, the Inter-American bodies have always been confronted with the ICJ’s judgment in Nuclear Weapons. Though the ICJ has later modified its position, it has never clearly given up the application of the speciality rule to an Art. 6 case. The test of what is an “arbitrary” deprivation of life then falls to be determined by the applicable lex specialis.190 Nevertheless, the InterAmerican bodies have succeeded in emancipating themselves from this ruling, although the IAComHR used it once in Coard, a case dealing with an international armed conflict. In contrast, the IACtHR never used the specialty rule but rather referred to the “specificity” of international humanitarian law in the context of non-international armed conflicts.191 In the course of time the Inter-American human rights practice, although it had been shifting between various concepts of dealing with humanitarian law, has consolidated and finally arrived at a “Convention-focused position.” This position can be characterized by the following principles: – Both Convention rights and humanitarian law are meant to protect the individual in times of armed conflict. Thus, the two spheres of law share a “common nucleus” or “common purpose.” – The specificity of humanitarian law does not prevent the application of human rights law; Convention rights continue to be applicable even in a situation of armed conflict, either of an internal or an international character. – According to Art. 31 (3) VCLT, the American Convention may be interpreted in the light of any other international treaty binding upon the state concerned, in particular the Geneva Conventions. – With respect to this, humanitarian law provides for the definitional standards which help to determine the legal terms and, accordingly, the scope of the Convention guarantees. In particular, common Art. 3 GC proliferates the “elements” for the interpretation of human rights clauses in the context of internal armed conflict.192 – However, it is particularly important to use the method of evolutionary interpretation with regard to human rights treaties.

190

Nuclear Weapons (note 143), supra D. II. 1. a). See, e.g., Serrano Cruz (note 23). 192 Accordingly, it is not correct to say that the Inter-American system tends to use humanitarian law as to supplement human rights law. See the critical remarks by McCarthy (note 156), 779–780. 191

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– The Convention bodies consider themselves to be entitled to examine whether there was a breach of humanitarian law. However, the outcome, for reasons of competence, may not be part of the judgment but rather influences the application of the relevant human rights norm, which itself must be interpreted in the light of humanitarian law. – If the respondent state invokes the rules of IHL in order to justify any limitation of Convention rights, the Court feels competent to examine whether the humanitarian norm is compatible with the Convention, as it does with regard to national law that is invoked as a basis for the restriction of human rights. – If a military action is found to have violated the rules of humanitarian law, the state cannot justify it by invoking any provision of the American Convention. If the requirements of humanitarian law, in contrast, were duly respected, a limitation of Convention rights will regularly be upheld because IHL and HRL are considered to be “convergent.” After all, one can say that the Convention is in the legal centre, whereas humanitarian law contributes essentially to the application of the Convention to the individual case. Two different forms of employing humanitarian law should be distinguished: First, IHL can serve as a means of interpretation, particularly when it comes to the definition of specific terms in human rights clauses such as, e.g., “arbitrary” (Art. 6 ICCPR). Secondly, IHL can be invoked by a state in the function of a law limiting human rights. This leads us to the most difficult question, which has not yet been decided by the Inter-American bodies: what consequence follows from the fact that a state has perfectly respected the rules of humanitarian law? As both spheres of law, IHL and HRL, are “convergent,” the state would be justified under the Convention. However, the question whether humanitarian law was observed in this case cannot be answered by the states themselves. Rather, it will be up to the human rights bodies to examine whether there was any violation of humanitarian law, as the IACtHR, e.g., in Las Palmeras and Bamaca-Velasquez explicitly stated. If one puts this together with the concept of evolutionary interpretation, which the Court has used in Serrano Cruz Sisters, it is no more likely that humanitarian law will be employed in the traditional manner.

3. European Court of Human Rights: The Mystery of Ignorance According to Art. 32 ECHR, the ECtHR, like the IACtHR, is only competent to decide on the interpretation and application of the Convention. In contrast to the

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Inter-American Human Rights bodies, it has always understood the limits of its competences quite verbatim. As a consequence, there are many cases pertaining to armed conflict, but practically no humanitarian law.193 The specific European approach can be illustrated by two important cases:

a) Ergi (1998) and Isayeva (2005) A case often discussed in this context is Ergi v. Turkey. Ergi, a Turkish national of Kurdish origin, had lost his sister who was shot during an ambush operation conducted by the Turkish military against PKK fighters. As there was no clear evidence, Turkey could not be made responsible for the killing as such but had failed in planning and conducting the operation properly and later in investigating the case adequately. Thus, the Court concluded that the Turkish authorities, by neglecting their duty to protect life, had violated Art. 2 of the Convention. It did not say a word on humanitarian law.194 The Court did not even indicate that a military action during armed conflict must in any respect be treated differently from any other state action. The respondent state did not invoke humanitarian law standards either.195 In the case of Mrs. Isayeva,196 the woman from Chechnya197 who lost her relatives and all personal belongings in an aerial missile attack while moving in a convoy of refugees, the ECtHR followed the same muster. It reiterated that Art. 2 of the Convention “covers not only intentional killing but also the situations where it is permitted to ‘use force.’”198 It also accepted that the situation that existed in Chechnya called for exceptional measures, including employment of military aviation equipped with heavy combat weapons. However, as Russia had not deposited any Article 15-declaration, it had not validly excluded the applicability of any provision of the Convention. Consequently, the Court required the state to show that the use of force was “absolutely necessary” for the achievement of the 193

IHL was mentioned only by Sperduti and Trechsel in their separate opinions in Cyprus v. Turkey, Report of the Commission, 4 European Human Rights Reports (E.H.R.R.) 482, and by non-governmental organizations whose reports were submitted to the Court by one of the complainants, see Isayeva (note 3), para. 114. 194 See also, e.g., Akdivar, ECtHR, Rep. 1996-IV. 195 See also, e.g., Ozkan, ECtHR, No. 21689/93, Judgment of 6 April 2004. 196 See supra A. with note 3. 197 For a survey on the case law see Ph. Leach, The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights, E.H.R.L.R. 6 (2008), 732–761. 198 Isayeva (note 3), para. 169.

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purposes set out in the subparagraphs of Art. 2. As the operation was not planned and executed “with the requisite care for the lives of the civilians,” it was in breach of the right to life. As usual, the European Court did not say a word on humanitarian law, despite the fact that common Art. 3 of the Geneva Conventions was mentioned prominently in the reports of American (!) NGOs submitted to the Court by the complainant. Being familiar with the Inter-American system those NGOs proposed that “[t]he norms of non-international armed conflict should be construed in conformity with international human rights law governing the right to life and to humane treatment.”199 The Court, however, did not adopt this approach. Neither did it apply any specific test of necessity with regard to armed conflict nor resort to humanitarian law, e.g., to examine an attack against cars with the Red Cross symbol. Instead, it simply applied the general standards as of the Convention system, thereby having due regard to the exceptional situation.

b) Analysis Reading the European cases on armed conflict200 one wonders why the Court has never referred to humanitarian law and, consequently, has never discussed the relationship between the two bodies of law. An obvious explanation for this could be that the Court wanted to signalize to the states that they cannot profit from the humanitarian law standard, unless they formally derogate from the human rights standard pursuant to Art. 15 ECHR. However, Art. 15 cases like Ireland v. the United Kingdom (1978) have been dealt with the same manner: no humanitarian law has been applied so far. Where humanitarian law was explicitly invoked as, e.g., in Cyprus v. Turkey (1976), the majority of the then Commission refrained from (clearly) using it, while only two members of the Commission in their separate opinions considered GC IV in order to assess the measures taken by the occupying

199

Ibid., paras. 163, 166. Detailed surveys are given by, e.g., A. Reidy, The Approach of the European Commission and Court of Human Rights to International Humanitarian Law, IRRC 80 (1998), 513 et seq.; J. Heintze, On the Relationship Between Human Rights Law Protection and International Humanitarian Law, IRRC 86 (2004), 789–814; id., The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts, GYIL 45 (2002), 60 (60); W. Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, European Journal of International Law 16 (2005), 741 (746); M. Sassoli, La Cour européenne des droits de l’homme et les conflits armés, in: S. Breitenmoser (ed.), Human Rights, Democracy and the Rule of Law, Liber Amicorum L. Wildhaber, 2007, 709 (724). 200

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power.201 It is quite unlikely that the ECtHR interprets Art. 32 ECHR as depriving it of any competence to even refer to humanitarian law, for it has continuously considered “any relevant rules of international law applicable in the relations between the parties” (Art. 31 (3) VCLT) as a legitimate means of interpretation.202 Hence, one must conclude that the ECtHR simply refuses to interpret Convention rights in the light of humanitarian standards, no matter whether the respondent state derogated from those rights or not. Instead the Court is developing a “Convention law on armed conflict.” However, it has to be taken into account that the ECtHR is rather restrictive with regard to any extraterritorial application of the Convention and no case has yet come up concerning an international armed conflict, where the rules of humanitarian law play a much greater role than in an internal armed conflict. Why is the European system so reluctant to consider humanitarian law? Some authors adduce various pragmatic and theoretical aspects, such as the lack of applicable rules in non-international armed conflicts, conceptual differences between IHL and HRL or particular problems concerning the relationship between the two bodies of law.203 Others have tried to construe an application of humanitarian law sub silentio.204 However, the motives remain in the dark, as the ECtHR chooses to ignore humanitarian law even in cases where the application of humanitarian law almost suggests itself. 4. International Criminal Tribunals: Transforming Human Rights Concepts into Humanitarian Law a) Ad hoc Tribunals: Indirect Consideration of Human Rights Law aa) The International Criminal Tribunal for Rwanda as a Peace-maker: Akayesu (1998) The ICTR has not developed a sophisticated doctrine on the integration of human rights concepts into humanitarian law but rather refers to human rights as if it were 201 Sperduti and Trechsel (note 193). Commenting on the Commission’s “strange wording” Frowein (note 101), 10. 202 See, e.g., Mamatkulov/Askarov, ECtHR, Nos. 46827/99 and 46951/99, para. 111. 203 N. Lubell, Challenges in Applying Human Rights Law to Armed Conflict, IRRC 87 (2005), 737 (744). 204 According to Reidy (note 200), 513, the Court formerly had applied humanitarian law sub silentio” and ceased to do so in the Chechnya case. Lubell (note 203), 743, believes that the ECtHR made use of IHL principles, e.g., in the Ergi case “without referring to them by name.”

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a matter of course. As concerns, e.g., the definition of torture, it resorted to Art. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, it deemed it necessary to add some specific elements as exemplified in Akayesu.205 In this case the ICTR started by defining torture, which is considered as a crime against humanity pursuant to Article 3(f) of the Statute of the Court, by explicitly citing the wording of Article 1 of the UN Convention against Torture. In a second step the Court enumerated the essential elements of torture as laid down in Article 1, and in a third step the Court added: … The Chamber finds that torture is a crime against humanity if the following further elements are satisfied: (a) Torture must be perpetrated as part of a widespread or systematic attack; (b) the attack must be against the civilian population; (c) the attack must be launched on discriminatory grounds, namely: national, ethnic, racial, religious and political grounds.

It is obvious that the ICTR did not simply import the human rights concept of “torture” into humanitarian law but rather transformed this concept into a crime against humanity by adding “further elements” to it.206 A few weeks later the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted the same “further elements approach.”

bb) The International Criminal Tribunal for the former Yugoslavia: Adopting the Further Elements Approach in Delaliü and Furundžija (1998) The ICTY has considered human rights law when determining whether there was a violation of the Laws or Customs of War. This can be observed, e.g., in the Delaliü case207 and it was further elaborated in Furundžija.208 In the latter case the Trial Chamber determined the notions of “torture” and “outrages upon personal dignity, including rape” in the context of Article 3 of the Statute of the International Tribu-

205 Akayesu, ICTR, Chamber I, Case No. 96-4-T, Judgment of 2 September 1998, paras. 593–595. 206 On the other hand, torture in the sense of Art. 1 CAT must be committed by a person acting in an official capacity, whereas under IHL torture can also be committed by other persons taking part in the conflict, see Droege (note 62), 342. 207 Delaliü, ICTY, Judgment of 16 November 1998, Case No. IT-96-21-T, paras. 475–494. 208 Furundžija, ICTY, Judgment of 10 December 1998, Case No. IT-95-17/1-T, reprinted in International Legal Materials (ILM) 38 (1999), 317.

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nal,209 which implicitly refers to common Article 3 of the Geneva Conventions. The Court defined “torture” in the sense of common Article 3 as follows: 159. International humanitarian law, while outlawing torture in armed conflict, does not provide a definition of the prohibition. Such a definition can instead be found in Article 1(1) of the 1984 Torture Convention … 161. The broad convergence of the aforementioned international instruments and international jurisprudence demonstrates that there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention. 162. The Trial Chamber considers however that while the definition referred to above applies to any instance of torture, whether in time of peace or of armed conflict, it is appropriate to identify or spell out some specific elements that pertain to torture as considered from the specific viewpoint of international criminal law relating to armed conflicts. The Trial Chamber considers that the elements of torture in an armed conflict require that torture: (i) … (v) … As is apparent from this enumeration of criteria,210 the Trial Chamber considers that among the possible purposes of torture one must also include that of humiliating the victim. This proposition is warranted by the general spirit of international humanitarian law: the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such important international treaties as the Geneva Conventions and Additional Protocols …

As this passage shows, human rights treaties are used by the international criminal tribunals if IHL is lacking terms or substance.211 The method according to which the ICTY resorts to human rights law resembles the one the ICTR has chosen. In particular, both Tribunals try to adapt concepts or definitions they have derived from human rights law to the “specific viewpoint of international criminal law relating to armed conflicts” (ICTY) by adding further elements to the basic elements, which are inherent in the respective human rights concept or term. With particular respect to the notion of “torture,” this method seems to be problematic, because it may touch upon the absolute character of the prohibition of torture as a peremptory norm of international law.

209

As interpreted by the ICTY Appeals Chamber in the Tadiü Jurisdiction Decision, Article 3 has a very broad scope. It covers any serious violation of a rule of customary international humanitarian law (“umbrella rule”), see Furundžija (note 208), para. 132. 210 It should be noted that the ICTY in Furundžija (note 208) explicitly mentioned the linkage to an armed conflict, which it had not mentioned in Delaliü (note 207), para. 494. 211 Cf. (mutatis mutandis) Tadiü, ICTY, Appeals Chamber, Case No. IT-94-1-A, Judgment of 15 July 1999, para. 98: “International humanitarian law does not contain any criteria unique to this body of law for establishing when a group of individuals may be regarded as being under the control of a State, that is, as acting as de facto State officials … Consequently, it is necessary to examine the notion of control by a State over individuals, laid down in general international law … ,” see also para. 105.

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Hence human rights terms will not be integrated as such into international criminal law but rather transformed into specific concepts of international criminal law. Comparing the practices of the two Courts in detail one finds, however, that the ICTY’s approach is somewhat more elaborate than that of the ICTR. The ICTY does not simply refer to any specific human rights convention but also scrutinizes the existence of “extra-conventional effects” in the field of customary international law.212

cc) Peculiarity and Embedment of the ad hoc Tribunals in the International Human Rights Order As the ICTY pointed out in Delaliü:213 The International Tribunal is an ad hoc international court, established with a specific, limited jurisdiction. It is sui generis, with its own appellate structure. The interpretation of the provisions of the Statute and Rules must, therefore, take into consideration the objects of the Statute and the social and political considerations which gave rise to its creation. The kinds of grave violations of international humanitarian law which were the motivating factors for the establishment of the Tribunal continue to occur in many other parts of the world, and continue to exhibit new forms and permutations. The international community can only come to grips with the hydra-headed elusiveness of human conduct through a reasonable as well as a purposive interpretation of the existing provisions of international customary law. Thus, the utilisation of the literal, golden and mischief rules of interpretation repays effort.

Although this passage relates to the applicable rules of interpretation, it is also interesting in a general perspective, as it reveals the self-esteem of the ICTY. The Court, on the one hand, stresses its sui generis character with special regard to its ad hoc establishment. On the other hand, the Court remains aware of the fact that it must resort to the rules of international customary law in order to effectively fulfill its task (effet utile). This task, however, is not limited to the requirements of international humanitarian law but unavoidably has an impact on the human rights situation, too. As the ICTR rightly suggested in its Kambanda Judgment, the penalties imposed on accused persons must signalize that “the international community was not ready to tolerate the serious violations of international humanitarian law and human rights.”214 This means that international tribunals are aware of the fact that their jurisprudence will not only develop humanitarian law but also strengthen the effectiveness of fundamental human rights in emergency situations. 212

Delaliü (note 207), para. 160. Ibid., para. 170. 214 Kambanda, ICTR, Case No. 97-23-S, Judgment of 4 September 1998, para. 28 (on general principles regarding the determination of sentences). 213

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It is also worth mentioning that the ICTY has not hesitated to examine whether its own establishment and jurisdiction satisfy the requirements of Article 14 and Article 15 (1) of the ICCPR.215 Though this practice does not contribute to the issue of whether the Tribunal may apply human rights law in its own cases, it shows that international criminal justice as such must be based on the respect for human rights.

b) International Criminal Court: Subsidiary Function of Human Rights Law According to Art. 21 (1) (b) of the Rome Statute, the ICC may apply “in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.” This means that the ICC may resort to general international law if primary sources such as the Rome Statute do not provide the rules necessary to decide the case. Accordingly, human rights law may clearly be considered in a subsidiary function. Unfortunately, it is still open what kind of human rights law the ICC will consider as “appropriate” for application to armed conflict. Art. 21 (3) of the Rome Statute additionally provides that “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.” This clause stipulates a practice which has already been adopted by the ad hoc tribunals, as these tribunals feel bound by procedural guarantees such as the nullum crimen sine lege principle. However, the question arises whether the wording even allows for a broader interpretation. Does Art. 21 (3) of the Statute only refer to the process of decision-making or does it also extend to the result of that process which is the judgment? In the latter case, humanitarian law would be completely subject to the requirements of human rights law, with the result that both, international humanitarian law and human rights law, would be harmonized. Obviously, this was not the intention of the drafters. Rather the Draft version of Art. 21 (3) of the Statute read: “... must be consistent with internationally recognized human rights, which include the prohibition on any adverse distinction founded on.”216 It was remarked in a footnote that “it was generally agreed that consistency with internationally recognized human rights would require that interpretation by the Court be consistent with the principle of nullum crimen sine lege.” Apparently, Art. 21 (3) of the Statute does not proclaim the superiority of 215 Tadiü, ICTY, Trial Chamber, Decision on the Defence Motion on Jurisdiction of 10 August 1995, paras. 33–34, 72; Delaliü (note 207), paras. 311–313. 216 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court of 14 April 1998, A/CONF.183/2/Add.1.

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human rights law over humanitarian law but rather modifies the manner in which the decision has to be made.

E. Synthesis I. General Overview The relevant case law shows no common or predominant practice but rather a number of approaches, which reflect the different purposes and traditions of the individual systems. Contemporary European human rights jurisprudence completely ignores humanitarian law in cases that do not touch upon the territorial notion of the ECHR or exceptionally overcome the rigid standards of extraterritorial application. American human rights practice has consolidated on the basis of “complementation” and “convergence,” thereby considering IHL as a resource for interpretation (cf. Art. 31 (3) (c) VCLT). International criminal jurisprudence adapts human rights to its specific needs and purposes (further elements approach), and the ICJ ultimately leaves us alone with all three options (“free” choice of HRL, IHL or both).

II. Application of Human Rights Treaties in Armed Conflict 1. The Relevance of the Character of the Armed Conflict It is now clearly established that generally both humanitarian law and human rights are applicable in situations of armed conflict and occupation.217 However, if it comes to the application of a specific human rights treaty, a limitation of scope may follow from special treaty provisions on applicability requiring that the respondent state has “jurisdiction.” On the other hand, it is widely assumed today that the outbreak of armed conflict does not automatically terminate or suspend all treaty relations between the parties to the conflict.218 The concrete application of human rights treaties in armed conflict apparently correlates with the kind of conflict and the status of the protected person. The treatment of civilians, particularly in non-international armed conflicts, is much more likely to be considered under human rights law than that of combatants. One 217

See, e.g., Cerone (note 103), 1509. See Greenwood (note 7), 73, MN 252, with references to the relevant ILC studies on the effects of armed conflicts on treaties. 218

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can even state that the applicability of HRL with regard to civilians, particularly in a situation of non-international armed conflict or occupation, is widely accepted in contemporary international law,219 although many states are still reluctant to accept this, all the more with respect to international armed conflict.220 Usually, this distinction is explained by the fact that with regard to non-international armed conflict humanitarian rules have remained “embryonic”221 or likewise insufficient so that human rights must supplement the missing norms especially in that field. If IHL provisions exist at all, e.g., in the form of common Art. 3 GC or the second preambular paragraph of AP II, they by themselves open the door to human rights law.222 This corresponds to the fact that in a situation of non-international armed conflict the use of military force often appears to be a mere escalation in the use of force that starts with police action and ends up with military action.223 Another explanation, however, may be derived from the fact that with particular regard to international armed conflicts, the extraterritorial application of human rights treaties as a rule has to be established specifically. This, however, presents us with the need to show that the “invader state” exercised jurisdiction in the foreign territory in a way that is at least comparable to the ordinary forms of jurisdiction (“normality rule”).224 Consequently, human rights treaty law will in all probability not be applicable with regard to military action in the context of an ongoing international armed conflict, but may come in with regard to acts taken in a situation of occupation or with regard to any non-international armed conflict, where the transition from the use of force by police – which clearly constitutes a human rights case – to military action is only gradual or fluent and where no problem of extraterritorial application exists.

219

According to Lubell (note 203), 740, the extension of human rights obligations to occupied territory were based on an analogy to national territory, whereas occupied territories in which significant hostilities are occurring, would remain controversial. 220 Supra (note 134). 221 Cf. Guellali (note 2), 562: “le droit des conflits armés non internationaux reste très embryonnaire”, and 565: “très peu de règles.” 222 For the referring character of those provisions see supra B. II. 3. b). 223 There is, however, a slight trend in IHL to adjust the standards of non-international conflicts to international conflicts, cf. ICTY in Tadiü, Case No. IT-94-1-AR72, Appeal on Jurisdiction of 2 October 1995, reprinted in ILM 35 (1996), 32 (68, para.119): “What is inhumane … in international wars, cannot but be inhumane and inadmissible in civil strife.” 224 Supra C. II. 2. b) and C. II. 3.

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2. Restatement of the Effective Control Criterion with Regard to Extraterritorial Application a) Importing Human Rights to Foreign Legal Cultures? It has been argued that the extraterritorial application of a regional human rights treaty beyond the region would contravene recognized principles of IHL. As Lord Brown explained in the House of Lords’ Al-Skeini judgment, European Convention rights are often incompatible with the laws of the occupied territory, particularly where Shari’a law is in force. Accordingly, Art. 43 of the Hague Regulations of 1907 concerning the occupant’s obligation to respect the laws in force would prohibit the occupying state from satisfying the requirements of the ECHR.225 This parallels the position of the ECtHR in Soering that “the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States.”226 However, this interpretation of Art. 43 of the Hague Regulations is not cogent. That provision, enshrining the principle of integrity, is supplemented and further specified by Art. 64 GC IV, which enables the occupying power to “subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security …” Both Art. 43 of the Hague Regulations and Art. 64 GC IV which are part of customary international law227 constitute general rules for the management of occupied territory and belong to what has been called the ius post bellum. It certainly does not prohibit the occupation power from applying “foreign” human rights law. Even the compulsory introduction of human rights law into the legal order of the occupied state is permissible where it is necessary in order to restore peace and security in the interest of the population. At any rate, one has to distinguish between the transplantation of human rights into a foreign legal order, which remains questionable, and the mere respect228 for the ECHR by the military forces of a state party to the Convention in the territory of another state. Art. 1 ECHR obliges Convention states to observe the Convention wherever it exercises effective control. As a 225

Al-Skeini (note 125), para. 129; Thienel (note 125). Soering (note 116), para. 68. 227 J.-M. Henckaerts/L. Doswald-Beck (eds.), Customary International Humanitarian Law, 2005. 228 Schäfer (note 2), 31, proposes to distinguish between obligations to protect and obligations to respect. 226

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matter of course, states in that situation can only be obliged to ensure those human rights that they have the power to effect.229

b) Reverse Proportionality There seems to be a correlation between the restrictiveness of a court in accepting the extraterritorial applicability of a human rights treaty and its willingness to implement human rights in armed conflict without compromising them by “more specific” humanitarian law, which amounts to a kind of “reverse proportionality.” The ECtHR, on the one hand, stresses the regional character of the ECHR and, on the other hand, rigidly implements Convention rights whenever a case exceptionally meets its relatively restrictive standards230 of extraterritorial application. Conversely, the Inter-American bodies seem to be more open to extraterritorial application, on the one hand, and more prepared to limit the scope of human rights provisions by humanitarian law, on the other hand.

c) Presumption of the Existence of Jurisdiction and Priority Rule As a general rule a state will only be responsible for human rights violations committed on its own territory when it exercises jurisdiction. It will therefore not be responsible if another state, e.g., an occupying power, acted autonomously in its territory,231 provided that the territorial state cannot be blamed for its failure to prevent the other state’s violation. In this situation, the occupying power could be expected to guarantee to the resident population those human rights it had enjoyed before the occupation, at least to the extent that is possible under the specific circumstances. However, such an obligation is only assumed within a regional system with respect to cases in which both parties, the territorial state and the occupying state, are parties to the same human rights convention. The ECtHR, e.g., 229

Ben-Naftali (note 129), 93, calls that a “control in relative terms.” Cerone (note 103), 1498–1506, opines that there are varying levels of obligations; e.g., human rights obligations requiring the adoption of affirmative measures may be more limited in an extraterritorial context. 230 Cf. Cerone (note 103), 1481 and 1485, according to whom the jurisprudence of the European System has been more cautious resp. careful to avoid an interpretation that would render the ECHR applicable across the globe. 231 See, e.g., Isayeva (note 3), and supra D. II. 3. a). See also M. A. Babiker, Application of International Humanitarian and Human Rights Law to the Armed Conflicts of the Sudan: Complementary or Mutually Exclusive Regimes?, 2007, 101 et seq.

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has argued with respect to this constellation that a “regrettable vacuum in the human rights protection” must be avoided,232 with the result that the occupying power has to guarantee the Convention rights extraterritorially instead of the territorial state. That same automatism does, however, not apply if the invading or occupying state is a party to a human rights convention that has never been applicable to the population living in the respective territory. In such a constellation, the jurisdiction and, thus, the accountability of the occupying power will only be affirmed if the requirements of the very demanding control test are met. The result of this method, which seeks to establish jurisdiction separately with regard to both states, will often be that the territorial state is found to have lost control, while the occupying state, although it deprived the former of its territorial jurisdiction, does not fully meet the criteria of “control.” In the end, none of them will be obliged to respect and ensure any Convention rights. A similar problem occurs with respect to cases in which international organizations are involved.233 Although this result perfectly reflects the contemporary state of international law, it is obviously unsatisfactory. Alternatively, one can focus on the “relationship” between the two or more conflicting parties acting within a specific territory. The author suggests that there is a rebuttable presumption that jurisdiction always exists, whenever a state has acted. That presumption is based on the hypothesis that whenever an actus iure imperii has been taken, at least one of the states of the world must, as a principle, have jurisdiction. Jurisdiction, by virtue of the principles of state sovereignty and self-determination, is primarily vested in the territorial state which normally exercises governmental power in that territory. As a rule, this state has to guarantee human rights, unless there is an exceptional situation where another state has taken over jurisdiction (priority rule). According to this construction the territorial state loses its jurisdiction only to the extent to which a foreign state obtains it. Conversely, the latter must be considered to have obtained “control” if the territorial state could not exercise any influence on the impugned act and thus had no control.

d) The Prime Importance of the “Normality Rule” According to the practice of human rights treaty bodies with regard to extraterritorial application, there is no jurisdiction if the impugned governmental act does not assume the ordinary forms of state action according to the “normality rule.”234 232 233 234

Supra C. II. 2. a) with note 82. See supra C. II. 2. c). Supra C. II. 2. b) and C. II. 3.

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This means that the act, even if it is an expression of total power, must additionally bear the hallmarks of civilian forms of government. Consequently, an invader or occupying state has jurisdiction if it detains persons, puts them on trial, formally seizes houses or makes laws. In contrast, it has no jurisdiction if its troops perform an air raid or shoot at persons in combat. On the other hand, human rights do play a role if, according to the “normality rule,” a state’s extraterritorial act, e.g., in combat, does not even resemble any civilian act in the abovementioned sense. As has been shown before, human rights law remains relevant even in this situation, not only by virtue of specific clauses of IHL referring to human rights law, but also when it comes to the interpretation of IHL terms, which clearly refer to human rights concepts such as “torture,” in spite of the fact that the international criminal courts tend to add further elements to these concepts and so to transform them into humanitarian law concepts.235 Additionally, human rights may always be considered by the ICC as a subsidiary source, no matter whether the respective crime was committed in a combat situation or during occupation.236 Last not least, European human rights jurisprudence has developed a rule, according to which states must never infringe the most fundamental human rights such as the prohibition of torture, even if the infringement results from extraterritorial effects of their intra-territorial action.237 The same must apply if states act extraterritorially.238

e) Which Human Rights Convention is to Be Applied by an Occupying Power? If an occupying state has taken over jurisdiction in a foreign state, the question is, which human rights treaty it should apply. There are two options: Firstly, the occupying state could be obliged to extraterritorially apply its own human rights treaty, i.e. the one to which it is a party. Secondly, the occupying state could be obliged to apply the treaty to which the occupied state is a party. The latter option requires further consideration. Is an occupying state obliged to respect and ensure human rights under a treaty which only the occupied state has ratified? One could answer this question in the 235

Supra D. II. 4. a) bb). Supra D. II. 4. b). 237 Soering (note 116). 238 If they act intra-territorially, jurisdiction must be presumed, so that they cannot escape from their human rights obligations anyhow. 236

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affirmative arguing that the population living in the occupied territory originally was under the protection of this human rights treaty in the same way as it enjoyed other individual rights that were guaranteed by the national legal order before the occupation. Accordingly, it can be argued that the principle of integrity enshrined in Art. 43 of the Hague Regulations (HR)239 and Art. 64 GC IV also embraces all human rights treaties of the territorial sovereign,240 because the object and purpose of that principle is to preserve the human rights status of the individuals coming to live under occupation. This corresponds to a principle required by the law of state succession, according to which human rights treaties devolve with territory,241 so that the resident population is not deprived of any human rights it already enjoyed. Consequently, the occupying power may have to respect human rights treaties, even if its own human rights treaties do not apply extraterritorially in the specific circumstances.

3. Expressiveness and Consequences of Non-Derogation States have never derogated from their obligations under human rights with respect to ongoing international armed conflicts.242 Apparently, they believed that military actions in this context would be covered by IHL alone. This motivation seems all the more plausible because it fits with the notion that humanitarian rules (allegedly) are leges speciales which anyhow supersede human rights norms. One could therefore argue that according to virtually uniform state practice no deroga239 For the respect for human rights and humanitarian law with respect to Art. 43 Hague Regulations see F. O. Raimondo, The International Court of Justice As a Guardian of the Unity of Humanitarian Law, Leiden Journal of International Law 20 (2007), 593 (605), with reference to the findings of the ICJ in Armed Activities on the Territory of the Congo. 240 See Armed Activities on the Territory of the Congo (note 155), para. 178. “The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of inter-national human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.” 241 Report of the Human Rights Committee to the General Assembly, GAOR, Fiftysecond Sess., Suppl. 40 (A/52/40), 17, para. 81. In the case of Hong Kong, China and the United Kingdom explicitly agreed on the continuity of the ICCPR in the territory of Hong Kong, ILM 36 (1997), 1675 (1676, 1685). 242 Droege (note 62), 319.

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tion is needed, because HRL is anyhow superseded by IHL. But there is an alternative explanation for that state practice. As states have never given any reasons for not making use of the derogation clauses, they may well have intended to avoid the international surveillance going along with derogations, even if that meant loosing the benefits of derogation. There is another good reason for not putting oneself under international surveillance as a consequence of derogation. If a state has validly derogated from certain human rights provisions, human rights treaty bodies will not necessarily “take the renvoi to humanitarian law.”243 There rather is a tendency in international jurisprudence to strictly apply the principle of proportionality even to the specific measures taken pursuant to the derogation244 and also to extend the number of non-derogable rights by referring to obligations inherent to the human rights treaty as a whole or to general international law.245 Accordingly, there is not much room left to derive any benefits from derogation. The decision of a state not to derogate must be assessed with a view to the criteria of extraterritorial application of a human rights treaty. Today, it is widely accepted that a state, even if it is involved in an international armed conflict, can have “control” and thus jurisdiction.246 For instance, if a state party to the ECHR performs a military action in Afghanistan, jurisdiction with regard to single acts may be established in that territory, provided that the respective act, firstly, can neither be attributed to the territorial state nor to the United Nations247 and, secondly, resembles the civilian forms of state action. The undisputed consequence will be that the Afghan victims of such action may bring their case before the ECtHR in Strasbourg, despite the fact that they normally could not fall within the scope of application of the ECHR and had never done so before the military intervention. This means that even the notion of “control” which has already been accepted in contemporary international law, at least by the human rights treaty bodies (not so much by the states), confronts the states with the need to decide on the necessity of a declaration of derogation with respect to international armed conflicts. This applies all the more with regard to the presumption of the existence of jurisdiction248 as being proposed in this article. A pressing need to rethink the old habits regarding derogation results from the following arguments: First, the resident population in the case of control 243 244 245 246 247 248

Cf. Abresch (note 200), 745 with note 12. Supra B. II. 1. General Comment No. 29 (note 41), paras. 13–16. Supra C. II. 3. Supra C. II. 2. c). Supra E. II. 2. c).

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exercised by a foreign power is deprived of any chance of accountability of the territorial state for state action and, secondly, the invader or occupying state has a chance to derogate,249 in particular from those human rights treaty provisions which guarantee the right to fair trial to any person being detained or imprisoned, put on trial, or allegedly deprived of his or her Convention rights.

III. Rethinking the Relationship between International Humanitarian Law and Human Rights Law 1. Why the Specialty Rule Proves Erroneous It has often been observed that IHL and HRL have different goals, different areas of applicability, a different history, different purposes and principles, etc.250 This alone sheds doubt on the applicability of the lex specialis maxim in our context, no matter what form of speciality is at stake. Accordingly, it has been said that the lex specialis maxim does not apply to normative conflicts between “unrelated normative orders” in a fragmented legal system such as that of international law.251 This objection corresponds to a more theoretic (Kelsenian) point of view, according to which the lex specialis maxim has no derogating (superseding) power by itself but only describes its effects. According to this position a superior rule is needed, which prescribes the application of the lex specialis maxim to the conflict between the two (unrelated) norms.252 Whereas that superior rule derives from the authority of the legislator in a national legal order, it must be based on the consensus of the states concerned in the case of the (fragmented) international legal order253 – or, as could be added, on a binding decision of the UN Security Council. Those who adhere to 249

Cf. Legal Consequences of the Construction of a Wall (note 87), para. 106, according to which “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation …” 250 See, in particular, R. Provost, International Human Rights and Humanitarian Law, 2002; M. Bothe, The Historical Evolution of International Humanitarian Law, International Human Rights Law, Refugee Law and International Criminal Law, in: H. Fischer et al. (eds.), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection, Festschrift für Dieter Fleck, 2004, 37–45; see also Greenwood (note 7), 12, MN 102 (sub 3), 74, MN 254; Gasser (note 56), 150–151; G. Verdirame, Human Rights in Wartime: A Framework for Analysis, E.H.R.L.R. 6 (2008), 689 (704); Lubell (note 203), 745, speaks of “separate languages.” 251 See, e.g., Lindroos (note 5). 252 Cf. Vranes (note 5), 397–403. 253 For details see Vranes (note 5).

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this conception must prove that the states concerned have agreed on the superiority of a specific humanitarian norm over a specific human rights norm with regard to armed conflict. Only then the speciality rule may be applied at all. Another dogmatic objection results from the fact that the lex specialis maxim by its nature has the effect that only one of two norms both being applicable to the same case can be applied. Art. 6 (1) ICCPR, e.g., cannot be superseded by any more specific norm of IHL if Art. 6 (1) ICCPR is the provision which, in the contrary, shall be applied. It is true that a very similar result will be effected if the notion of an “arbitrary” deprivation of life as being enshrined in Art. 6 (1) ICCPR is interpreted in a way as to exclusively consider humanitarian instead of human rights principles. This is why an “indirect” form of speciality, indeed, may be assumed with regard to any third norm that could also contribute to the interpretation of, e.g., Art. 6 ICCPR.254 Even if the lex specialis approach is being employed in practice, it always relates to a specific normative situation. The ICJ, when employing the specialty rule in Nuclear Weapons, must have been aware of the fact that within the ICCPR system the right to life is a non-derogable right (Art. 4 (2) ICCPR), so that the notion of “arbitrary” (Art. 6 (1) ICCPR) remains “the only hook for humanitarian law”255 in such cases. The essential point, however, is that even the indirect form of the lex specialis maxim may only be applied by a court which as, e.g., the ICJ is competent to decide that a specific state has violated human rights as well as humanitarian law.256 Conversely, if a human rights treaty organ has a limited competence such as, e.g., the ECtHR or the Inter-American bodies, the jurisdiction of which only extend to those matters concerning the interpretation and application of the respective human rights Convention (e.g., Art. 32 (1) ECHR), a human rights court is prohibited from applying the lex specialis maxim if that means to do away with the applicable human rights concepts.

2. The System-Based Approach Those human rights treaty bodies whose competence is limited to the implementation of their own human rights treaty must not examine whether a state party has violated any humanitarian rule. And, yet they may consider IHL as interpretative guidelines when applying the provisions of the human rights treaty in the case of 254 255 256

See supra D. II. 1. a). Abresch (note 200), 745. Armed Activities on the Territory of the Congo (note 155), para. 219.

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armed conflict. This is reflected by Art. 31 (3) (c) VCLT as well as by the jurisprudence of the IACHR bodies. The latter in their more recent decisions use humanitarian rules as interpretative guidelines, aiming at something like “convergence.”257 Typically, humanitarian law is invoked by the respondent states in the sense that there can be no violation of Convention rights because humanitarian law had (allegedly) been faithfully observed. IHL here serves as a restricting law, which is used in order to justify a state action in the same way as a national law which may lawfully restrict individual human rights.258 It is, however, not permissible to conclude that because IHL was respected HRL could not have been violated either. A human rights body must not only examine whether the impugned act was prescribed by the law but also whether the act was proportional, the principle of proportionality being an essential element of human rights instruments. Even if the treaty organ may consider the specifics of the situation of armed conflict or occupation, it must never replace the human rights standard of proportionality by any other, e.g., humanitarian standard of proportionality.259

3. Intersecting Circles but Separate Spheres It is well known that the application of IHL to a specific case may lead to other results than the application of HRL.260 Discrepancies remain, despite the existence of reference clauses,261 despite the fact that the general principle enshrined in Art. 31 (3) (c) VCLT fosters what is called the “systemic integration” of international law262 and despite the jurisprudence of international criminal courts that may bring forward the approximation of HRL and IHL. If the potential conflict of norms is considered from a more practical or procedural point of view, one must concede that there is no single case conceivable in which the conflict or discrepancy leads to contradictory results that must be rectified. It will always remain 257

Supra D. II. 2. This has rightly been observed by the IACtHR in Las Palmeras (note 183), where this Court has declared itself to be “also competent to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible with the American Convention.” 259 As concerns the discrepancies between the human rights principle of proportionality and the humanitarian concept of military necessity see, e.g., Verdirame (note 250), 704; Lubell (note 203), 745–746. 260 See, e.g., the example given by Lubell (note 203), 747–750. 261 Supra B. II. 262 See, e.g., Cassimatis (note 20), 632, 634. 258

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logical to hold that a specific act which was committed in the context of an armed conflict, although it violated human rights law, was fully compatible with humanitarian law – and vice versa. International legal practice will show to what extent the humanization of armed conflict may ever proceed. There is no point of decelerating this development by the rash assumption of convergence.

Can Victims of Human Rights Violations Claim Damages? By Rainer Hofmann The organizers of the conference have entrusted me with the task of commenting on whether “Victims of Human Rights Violations Can Claim Damages.” Since the conference, as such, is focused on the development and present state of international humanitarian law (IHL), I have taken the liberty – with the anticipated approval of the organizers – to address not only the issue of individual claims for reparation, including monetary compensation, for human rights violations committed during armed conflict, but also the issue of such claims made by victims of violations of IHL rules. However, since the issue of human rights violations is primarily and intensively dealt with in the preceding contribution by Dagmar Richter, my comment will emphasize the latter issue, i.e. individual claims for reparation, including monetary compensation, by victims of violations of IHL rules.

A. Individual Claims for Human Rights Violations Concerning individual claims for human rights violations during armed conflict,1 it must be taken into account that, among the applicable human rights 1 On the following see, inter alia, R. Bank/E. Schwager, Is there a Substantive Right to Compensation for Individual Victims of Armed Conflict against a State under International Law?, German Yearbook of International Law 40 (2006), 367–412; A. Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln. Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts, Archiv des Völkerrechts 45 (2007), 299–381; D. Fleck, Individual and State Responsibility for Violations of the Ius in Bello: An Imperfect Balance, in: W. Heintschel von Heinegg/V. Epping (eds.), International Humanitarian Law Facing New Challenges, 2007, 171–206; R. Hofmann, Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation against States under International Law?, in: P.-M. Dupuy et al. (eds.), Völkerrecht als Wertordnung. Common Values in International Law. Festschrift für Christian Tomuschat, 2006, 341–359 (345 et seq.); C. Tomuschat, Reparations for Victims of Grave Human Rights Violations, Tulane Journal of International and Comparative Law 10 (2002), 157–184; A. Zimmermann, Responsibility for Violations of International Humanitarian

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treaties, only the regional instruments, the European Convention on Human Rights (ECHR) (Article 41),2 the Inter-American Convention on Human Rights (IACHR) (Article 63)3 and the African Charter on Human Peoples’ Rights (Article 27 of its 1998 Protocol),4 explicitly provide for a right to reparation, including monetary compensation, whereas the International Covenant on Civil and Political rights (ICCPR) does not contain such a provision. Our interest concerns the question whether this right also applies with respect to human rights violations during armed conflict, which presupposes that both conventions remain applicable during situations of armed conflict.5 This has been confirmed by the jurisprudence of both the European and the Inter-American Courts. The decisive criterion, at least for the ECtHR, seems to be whether the armed forces exercised “effective control”6 at the time of the violation. This approach has been followed by courts in the United Kingdom, including the House of Lords in the Al-Skeini case, where the majority of the Lord Judges held that the ECHR remained applicable in a situation where a person was detained in a prison run by British forces in Basra.7 As a result, British authorities are now obliged to investigate the case in order to enable the courts to Law, International Criminal Law and Human Rights – Synergy or Conflict?, in: W. Heintschel von Heinegg/V. Epping (eds.), International Humanitarian Law Facing New Challenges, 2007, 215–225. 2 Under this provision, the European Court of Human Rights (ECtHR) “shall, if necessary, afford just satisfaction to the injured party.” 3 Under this provision, the Inter-American Court of Human Rights (IACtHR) shall “rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.” 4 This Protocol, which establishes the African Court of Human Rights, entered into force on 25 January 2005; its Article 27 reads: “If the Court finds that there has been a violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.” 5 The continued applicability of human rights law as such, even in times of armed conflict, is now generally accepted; see only International Court of Justice (ICJ), Legality of the Threat or Use of Force of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25, and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106; see also J.-M. Henckaerts/L. Doswald-Beck (eds.), Customary International Humanitarian Law, vol. I, Rules, 2005, 313 et seq. 6 See in particular ECtHR, Bankoviü et al. v. Belgium, Decision on the Admissibility, 12 December 2001, Reports of Judgments and Decisions (RJD)-XII, paras. 59 et seq.; and Isayeva et al. v. Russian Federation, Judgment, 24 February 2005, RJD-II, paras. 227 et seq.; see also Fischer-Lescano (note 1), 315 et seq. 7 Al Skeini et al. v. The Secretary of State or Defence, Judgment of 13 June 2007, [2007] UKHL 26, available at http://www.bailii.org/uk/cases/UKHL/2007/26.html.

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decide on the allegation of a violation of Article 3 ECHR (with the potential to claim monetary compensation for the loss of life of Mr Al Skeini). So, at least in the European context (and I think it could also be shown in the Latin-American context)8 we can conclude that individual victims of human rights violations committed during armed conflicts are entitled to monetary compensation, provided that the respective treaty remains applicable. As regards the ECHR, according to the jurisprudence of ECtHR, this depends, at least, on the exercise of “effective control.” However, outside this treaty context, I do not see sufficient state practice to conclude that there is a customary law right to individual claims for reparation, including monetary compensation, for violations of human rights committed during armed conflict under international law. It might well be, however, that such a right exists under the applicable domestic law, including extensive legislation such as the US Alien Torts Claims Act. This is notwithstanding the fact that the individual now seems to be generally recognized as a (partial) subject of international law, in particular, as regards human rights law.

B. Individual Claims for International Humanitarian Law Violations The following comments relating to the question as to whether international law provides for the existence of individuals’ claims for reparation, including monetary compensation, will first describe the situation de lege lata before they turn to some considerations de lege ferenda.

I. The Situation under the lex lata Whereas regional human rights treaty law provides, at least to some extent, for a right of individuals to claim reparation, including monetary compensation, for human rights violations committed during armed conflict, the situation is different in regard to victims of violations of IHL norms. The research conducted in the context of the work of the International Law Association Committee on Compen-

8

See, in particular, IACtHR, Las Palmeras v. Colombia, Judgment of 26 November 2002 (Reparations), paras. 37 et seq., available at http://www.corteidh.or.cr/docs/casos/ articulos/seriec_96_esp.pdf, with an extensive survey of the pertinent jurisprudence; see also Fischer-Lescano (note 1), 312 et seq.

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sation for Victims of War9 allows for the following conclusions: Notwithstanding the recent adoption of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian law”10 and pertinent statements in other, equally non-binding, UN-documents such as, e.g., the “Report of the International Commission of Inquiry on Darfur,”11 there is hardly any state practice which would support the view that such individual claims can be based on international law norms. This applies, in particular, with respect to Article 3 of the 1907 Hague Convention IV and Article 91 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, which is an almost verbatim reproduction of the previous provision.12 Whereas the competence of the United Nations Claims Commission almost exclusively concerned reparations for violations of the ius ad bellum (and not the ius in bello),13 the Eritrea-Ethiopia Claims Commission seems to recognize such an individual right, which, however, is to be exercised by the state on behalf of the individual victim.14

9

See the Report of the Committee on Compensation for Victims of War for the 2006 Conference in Toronto, download available at htpp://www.ila-hq.org/en/committees/ index.cfm/cid/1018. 10 UN Doc. A/Res./60/147, 21 March 2006. 11 Available at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf; see also Fischer-Lescano (note 1), 323 et seq.; and C. Tomuschat, Darfur – Compensation for the Victims, Journal of International Criminal Justice 3 (2005), 579–589. 12 See, e.g., E. C. Gillard, Reparations for Violations of International Humanitarian Law, International Review of the Red Cross (IRRC) 85 (2003), 529–553 (536); C. Greenwood, International Humanitarian Law (Law of War), in: F. Kalshoven (ed.), The Centennial of the First International Peace Conference, 2000, 161–259 (250); Hofmann (note 1), 346 et seq.; F. Kalshoven, State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond, International and Comparative Law Quarterly 40 (1991), 827–858 (830); L. Zegveld, Remedies for victims of violations of international humanitarian law, IRRC 85, 2003, 497–527 (506). 13 See, e.g., Gillard (note 12), 541; W. Heintschel von Heinegg, Entschädigung für Verletzungen des humanitären Völkerrechts, in: W. Heintschel von Heinegg et al. (eds.), Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung des Völkerrechts, Berichte der Deutschen Gesellschaft für Völkerrecht 40 (2003), 1–61 (24); Hofmann (note 1), 351. 14 Hofmann (note 1), 352; see also J. Romesh Weeramantry, Civilian Claims (Eritrea v. Ethiopia), American Journal of International Law (AJIL) 101 (2007), 616–627.

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This conclusion is also based on the analysis of the pertinent jurisprudence of domestic courts.15 The general approach seemed to be that, at least as regards war crimes committed during World War II, no such individual claims can be made. Applying the principle of inter-temporal law, it was and is still held that, since such a right clearly did not exist at the time of World War II, it can not be claimed today either.16 The position of (some of) the Greek Courts in the Distomo case17 seems to be the sole exception. While the Greek court handling this case in the first instance was of the opinion that Article 3 of the 1907 Hague Convention IV did provide for an individual right to claim compensation,18 the pertinent ruling of the Areios Pagos19 did not deal with this provision but upheld the decision and added that it was an established principle in the international law on sovereign immunity that a state, here the Federal Republic of Germany, could not claim immunity if the acts in question are torts committed in the forum state. Subsequently, the claimants sought execution of the awards against German institutions in Greece; the execution ultimately failed, however, as the Greek Minister of Justice denied the authorization required under Greek law. Lawsuits against this denial were unsuccessful even though they had been carried as far up as to the ECtHR.20 In its judgment of 17 September 2002, the Greek Special Supreme Court decided in a parallel case that Greek courts did not have the authority to try cases on reparations for victims of the German occupation, as, in fact, no state could be tried before the court of another state for reparation of any kind, both in times of war

15

Fischer-Lescano (note 1), 337 et seq.; and Hofmann (note 1), 352 et seq. (both with further references to pertinent literature). 16 For a presentation of the pertinent decisions of German, Japanese, and US courts see Fischer-Lescano (note 1), 346 et seq.; and Hofmann (note 1), 354 et seq. (both with further references to pertinent literature). It should be noted that on 27 April 2007, the Japanese Supreme Court ruled, for the first time, on cases on sexual slavery and forced labor imposed by Japanese forces during World War II and reversed decisions of the High Courts by stating that the right to compensation for the victims could not be granted because of post-war agreements renouncing claims for reparation; for an English translation of the judgment, Case 2004 (Ju) No. 1658, see http://www.courts.go.jp/english/system/system. 17 Fischer-Lescano (note 1), 342 et seq.; and Hofmann (note 1), 353 (both with further references to pertinent literature). 18 For a discussion of this decision see the note by I. Bantekas, AJIL 92 (1998), 765. 19 For a discussion of this decision see the note by M. Gavounelli/I. Bantekas, AJIL 95 (2001), 198. 20 See Kalogeropoulus v. Greece, Decision on the Admissibility of 12 December 2002, RJD 2002-XII.

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and of peace.21 Later on, the claimants failed to enforce their awards in Ger-man courts. The German Federal Supreme Court22 ruled that the acts in question were acts de jure imperii and, therefore, covered by sovereign immunity. The Court recognized various tendencies to restrict sovereign immunity, inter alia, for violations of jus cogens norms, but held that this position was not yet generally accepted. Hence, the Greek judgment did not have any legal effect in Germany. The Court went on to examine whether the Greek claimants could claim compensation from Germany under international or German law. The Court found that such individual claims, should they exist, were not per se excluded or subsumed by the various agreements on reparations after World War II. It held, however, that international law, including Article 3 of the 1907 Hague Convention IV, as applicable at the time the war crime was committed, did not recognize individual claims for compensation in cases of violations of the laws of war. Rather, to demand such compensation fell within the exclusive domain of states and the mechanisms of diplomatic protection. Nor was there a basis for such claims under German national law, since the application of general torts law was suspended in wartime according to the Court, and replaced by the special regime of the laws of war. This judgment was later confirmed by the Federal Constitutional Court.23 Finally, in a preliminary ruling, the European Court of Justice held that a Greek decision involving a similar war crime committed by German soldiers during World War II could not be enforced under the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as it involved acta iure imperii.24 It should be noted, however, that there an increasing number of such cases is being brought before Italian courts. While the outcome of most cases remains to be seen, attention must be drawn to the recent decision of the Corte Suprema di Cassazione in which it held that Germany could not rely on the customary law principle of state immunity for acta iure imperii if such acts constituted violations of – what is considered today – ius cogens; in the present case the claimants had been victims of forced labor during World War II.25 This implies that the Italian 21

On this decision see A. Gattini, To what Extent are State Immunity and Non-Justiciablity Major Hurdles to Individuals’ Claims for War Damages, Journal of International Criminal Justice 1 (2003), 348–367 (360). 22 Bundesgerichtshof, Judgment of 26 June 2003, reprinted in Neue Juristische Wochenschrift (NJW) 2003, 3488. 23 Decision of 15 February 2006, reprinted in NJW 2006, 2542. 24 European Court of Justice, Lechoritou et al. v. Germany, Case C-292/05, Judgment of 15 February 2007, Rec. 2007, I-1519. 25 Corte Suprema di Cassazione, Ordinanza No. 14201 of 29 May 2008, available at http://www.cortedicassazione.it/Notizie/GiurisprudenzaCivile/SezioniUnite/, Neue Zeit-

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courts recognize, at least to some extent, that an individual international law right to reparation, including monetary compensation, existed during World War II, held by victims of violations of IHL – unless one would consider that the Italian courts have ceased to adhere to the general principle of inter-temporal law. As to more recent violations of IHL, the most prominent case is the Bridge of Varvarin case (now pending before the Federal Constitutional Court) where the German courts held that, notwithstanding recent developments with regard to the legal situation of the individual, international law still does not provide for such an individual right.26 Finally, mention should be made, of course, of Article 75 of the Rome Statute of the International Criminal Court, pursuant to which the Court may determine the scope and extent of any damage, loss and injury to, or in respect of, victims.27 It remains to be seen, however, whether and to what extent this provision will have any considerable relevance for the future work of the Court.

II. Considerations de lege ferenda There are, however, some good reasons to reconsider this situation since the above result does not properly reflect the present state of international law with respect to the position of the individual.28 International law currently recognizes the, albeit limited, legal personality of individuals and provides for a system of rights, at least on the regional level,, i.e. human rights, the violation of which results, in principle, in a claim for reparation by the individual victim against the state reschrift für Verwaltungsrecht (NVwZ) 2008, 1100; see also the previous decision of 11 March 2004 (Ferrini), Sentenza No. 5044, reprinted in Rivista di Diritto Internazionale 87 (2004), 540; E. M. Frenzel/R. Wiedemann, Das Vertrauen in die Staatenimmunität und seine Herausforderung, NVwZ 2008, 1088. 26 Hofmann (note 1), 344; the pertinent decision of the Federal Court of Justice (Bundesgerichtshof) of 2 November 2006 (BGHZ (Official Collection of Decisions) vol. 169, 348) confirmed the previous judgment of the Court of Appeals (Oberlandesgericht) Köln of 28 July 2005 (reprinted in NJW 2005, 2860) and held that IHL still does not provide for individual claims by victims of violations of IHL norms. 27 See G.Bittand/G. González Rivas, The Reparations Provisions for Victims under the Rome Statute of the International Criminal Court, in: International Bureau of the Permanent Court of Arbitration (ed.), Redressing Injustices through Mass Claims Processes – Innovative Responses to Unique Challenges, 2006, 299–324. 28 The following considerations are also reflected in the ILA Committee on Compensation for Victims of War Draft Declaration of International Law Principles on Compensation for Victims of War (Substantive Issues), prepared for the ILA Conference to be held in Rio de Janeiro in August 2008, download available at http://www.ila-hq.org/en/committees/ index.cfm/cid/1018.

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sponsible for the violations of such right. It is indeed difficult to accept that the situation should be different under international humanitarian law, in particular in a period of time when the traditional view as to the mutually exclusive applicability of human rights and humanitarian law has been abandoned. To give an example, under the above-mentioned decision of the House of Lords in the Al Skeini case, a person tortured while held in a prison run by the British occupation forces might have a claim for compensation against the United Kingdom, whereas persons, who were injured by an attack violating international humanitarian law in a situation of armed conflict solely governed by the rules of international humanitarian law, would not have such a claim for compensation against the responsible state. There might be reasons to continue to uphold such a difference, but they must be truly valid reasons. This means that Article 3 of the 1907 Hague Convention IV, as well as Article 91 of the 1977 Additional Protocol I to the 1949 Geneva Conventions should, in principle, be interpreted and applied in such a way in the future as to accord an individual right to compensation for violations of humanitarian law against the state responsible for the violations. This would solve the problem that the mere existence of primary rights, such as human rights and rights of individuals under international humanitarian law, does not per se result in the existence of secondary rights, such as the right to a remedy and the right to reparation, including compensation. Given that there is still little evidence in customary international law for an individual right to a remedy against and reparation for violations of international humanitarian law, it remains true that such a right must be explicitly provided for. Applying the generally recognized methods of systematic and teleological (or dynamic) treaty interpretation, Article 3 of the 1907 Hague Convention IV, as well as Article 91 of the 1977 Additional Protocol I could – if not, should – be interpreted in such a way as to confer a right to claim compensation for violations of international humanitarian law on the individual victims. From a systematic point of view, such an interpretation would resolve the problem of the incomprehensible difference between violations of human rights and violations of humanitarian law. From a teleological perspective, the conferral of such a procedural right would enhance the legal position of the individual and, thus, the extent of legal protection. Such an interpretation would also be fully in line with the approach of dynamic interpretation, which should not only be generally applied to human rights treaties, but also to international humanitarian law norms. To conclude this discussion, it should also be stressed that such an interpretation would not be incompatible with any other accepted rule of treaty interpretation.29 29 See, e.g., Hofmann (note 1), 358; Greenwood (note 12), 250; Kalshoven (note 12), 836; and Zegveld (note 12), 506.

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C. Concluding Remarks This is certainly not the end of the story, however. The recognition of such a right does not per se imply that victims might sue the responsible state in whatever forum they might wish to choose. There are still strongly convincing arguments of both a legal and a political nature to continue to apply the rules of state immunity as concerns acta iure imperii – also with regard to violations of ius cogens norms.30 In any case, notwithstanding recent developments,31 there is still too little evidence to argue that, under customary international law, states might be sued before the courts of another state for violations of ius cogens norms without having the right to invoke their rights under the law on state immunity.32 Therefore, such claims might – and should – only be made before the courts of the state responsible for the relevant violations of international humanitarian law or competent international courts. Under a legal policy perspective, to allow for such claims before the national courts of the responsible state or international courts might, however, not be the best solution. Firstly, it must be questioned whether regular domestic courts or international human rights courts have the necessary expertise to decide on presumably highly complex issues such as whether specific conduct in an armed conflict does, in fact, amount to a violation of international humanitarian law or human rights law. Secondly, it must be borne in mind that armed conflicts will most frequently result in situations of mass violations of international law. In such situations it is not only practically impossible to award individual compensation, it is also not an appropriate way to achieve a balanced solution as a precondition for the establishment of a generally acceptable post-conflict settlement and lasting peace. One of the lessons to be learned from the wars and armed conflicts of the past century is that it is impossible to bring about individual justice in each and every case of violations of international law. Therefore, it is essential to consider alternative methods of post-conflict settlement, at least in situations of mass viola30 See, e.g., C. Tomuschat, L’immunité des Etats en cas de violations graves des droits de l’homme, Revue Générale de Droit International Public 109 (2005), 57–74. 31 See, in particular, the judgments of the Greek courts in the Distomo case (supra at note 17) and the Italian courts in the Distomo and Ferrini cases (note 25). 32 See, in particular, ECtHR, Kalogeropoulou v. Greece (note 20); see also ECtHR, AlAdsani v. United Kingdom, Judgment of 21 November 2001, RJD 2001-XII; see also C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under International Law, in: A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual, 1999, 1–25 (15); S. Furuya, State Immunity: An Impediment to Compensation Litigation – Assessment of Current International Law, in: Report of the Committee on Compensation of Victims of War (note 9), 15 et seq.

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tions of international law. And indeed, the establishment of ad hoc compensation commissions, before which individual claimants would have standing seems to be a model worth further pursuing.33

33 On this issue see the contributions in M. Holtzmann/E. Kristjansdottir (eds.), International Mass Claims Processes: Legal and Practical Perspectives, 2007.

From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers By Ralph Wilde*

A. Introduction In 2007, the year in which the centenary of the Hague Peace Conference of 1907 was being commemorated, the treatment of several hundred men by the US at its base in Guantánamo Bay was a prominent issue on the global human rights agenda. Of course, the impact on human rights of states acting abroad is a much broader phenomenon; in 2007, beyond Guantánamo and secret CIA “black” detention sites were a series of occupations, the long-standing Israeli occupation of Palestinian territory having being joined in 2003 by the occupation of Iraq by the US and the UK, initially through the Coalition Provisional Authority (CPA). Alongside state-conducted occupation was the administration of territory by international organizations, what I term International Territorial Administration (ITA), such as the United Nations Interim Administration Mission in Kosovo

*

Thanks to Dr Silvia Borelli and Sara Corris for research assistance. This paper draws together, with further analysis, ideas explored in parts of R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away, 2008, ch. 8; id., Are Human Rights Norms Part of the Jus Post Bellum, and Should They Be?, ch. 9 in: Carsten Stahn/Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, 163; id., Understanding the International Territorial Administration Accountability Deficit: Trusteeship and the Legitimacy of International Organizations, International Peacekeeping: The Yearbook of International Peace Operations, 12 (2008), 93–110; id., Legal ‘Black Hole’?: Extraterritorial state action and international treaty law on civil and political rights, Michigan Journal of International Law 26/3 (2005), 739–806. Due to space constraints, some of the background reference material for this piece could not be cited in the footnotes. In such circumstances, cross references to such citations in other publications is provided.

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(UNMIK) which operated from 1999 to 2008.1 Although given relatively less attention, these administrations also came under critical scrutiny on human rights grounds with, for example, the independent Ombudsperson institution in Kosovo complaining that UNMIK is not structured according to democratic principles, does not function in accordance with the rule of law, and does not respect important international human rights norms. The people of Kosovo are therefore deprived of protection of their basic rights and freedoms three years after the end of the conflict by the very entity set up to guarantee them. […] It is ironic that the United Nations, the self-proclaimed champion of human rights in the world, has by its own actions placed the people of Kosovo under UN control, thereby removing them from the protection of the international human rights regime that formed the justification for UN engagement in Kosovo in the first place.2

Analysis of the question of the rights and obligations of foreign actors administering territory that is not their own has tended to focus on particular instances; even when a broader frame of reference is adopted, often arbitrary, questionbegging classifications have been adopted to distinguish between situations – notably, the distinction between occupation, on the one hand, and trusteeship, on the other, and the distinction between state-conducted activity, on the one hand, and international-organization-conducted activity, on the other. This paper interrogates some of the assumptions that lead to such classifications and distinctions, and considers, in the light of this analysis, the extent to which the classifications and distinctions assist in attempts to understand both the political character of, and the human rights norms applicable to, the activities to which they relate. It will be argued that the distinction commonly made between trusteeship and occupation is without merit, and that the differences between foreign state and international organization-conducted territorial administration are of much less 1

On ITA generally see R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP, 2008), and the sources cited therein. On the definition of “International Territorial Administration” (ITA), see id., ch. 1, section 1.4. On UNMIK, see id., 1–12; 1–2, note 1, 16–18, 20, 22, note 64, 32–33, 34, note 95, 35, 42–43, 47, 54–56, 58, 60, 76, 85–86, 93, 95, 108–109, 138, 144–146, 148–150, 193–196, 199, 204, note 47, 206–207, 210, 212–213, 215–216, 220, 221–224, 226–231, 233–235, 238, 241–245, 250–252, 255, 257–259, 260, note 75, 261, 264–265, 270, note 120, 273–274, 275, note 140, 276–277, 290–291, 292, note 12, 293–296, 298, note 31, 301, 312, note 84, 344–353, 357–362, 382–384, 405, 413, 419–420, 424, note 541, 426, 427, note 553, 430, 433, 439, 440, note 9, 441, note 11, 442, 446–447, 449–450, 452, note 41, 455, 457. 2 Ombudsperson Institution in Kosovo, Second Annual Report 2001–2002, 10 July 2002, available at http://www.ombudspersonkosovo.org, 3 and 7 respectively. Citations to other criticism are contained infra, note 127.

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significance than they have been made out to be. It will be suggested that a crucial insight in relation to this enquiry is offered by a return to the world view of 1907 and the concept of occupation contained in the Hague Regulations, when that concept is then analyzed within a broader historical context.3

B. What is Occupation in International Law and Public Policy? Before engaging in comparative analysis between them, it is necessary to consider some of the concepts separately. Commencing with occupation, this term is used in law to denote territorial control by a state or group of states over territory the title to which is not vested in the state or states concerned; in law, claiming or altering this title through the occupation is legally prohibited.4 Many instances of occupation involve the conduct of administration; as a matter of law, administration is treated separately from the mere exercise of control, in that the latter triggers substantive obligations which themselves presuppose the exercise of the former.5 Many occupations result from military conflict. As a matter of law, the Hague formulation of 1907 (replicating the formulation of 1899) seems to presuppose a belligerent context, whereas the Geneva formulation of 1949 does not require this as an essential part of the trigger for applicability.6 Commentators now prefer to use the generic term “occupation” to cover both belligerent and non-belligerent occupations, even if in some respects the applicable legal regime may differ between each. In the words of Eyal Benvenisti: [t]he law of occupation developed as part of the law of war. Initially, occupation was viewed as a possible by-product of military actions during war, and therefore it was referred to in legal literature as ‘belligerent occupation.’ But the history of the twentieth century has shown that occupation is not necessarily the outcome of actual fighting: it could be the result of a threat to use force that prompted the threatened government to concede effective control over its territory to a foreign power; occupation could be 3 The concept of occupation in the Hague Regulations relevant for present purposes is contained in the Regulations from both 1899 and 1907. See Hague Regulations Respecting the Laws and Customs of War on Land, annex to the Convention (II) on the Laws and Customs of War on Land, The Hague, 29 July 1899, Martens Nouveau Recueil (Series 2), vol. 26, 949 (hereinafter Hague Regulations 1899); Hague Regulations Respecting the Laws and Customs of War on Land, annex to the Convention (IV) Respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Martens Nouveau Recueil (Series 3), vol. 3, 461 (hereinafter Hague Regulations 1907). 4 On the law of occupation, see the sources cited in Wilde (note 1), 308, note 74, 308– 309, note 75. 5 See the sources cited in Wilde (note 1), 309–310, note 79. 6 See the sources cited in Wilde (note 1), 310, note 80.

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established through an armistice agreement between the enemies; and it could also be the product of a peace agreement. Moreover, because of many occupants’ reluctance to admit the existence of a state of ‘war’ or of an international armed conflict, or their failure to acknowledge the true nature of their activities on foreign soil, the utility of retaining the adjectives ‘belligerent’ or ‘wartime’ has become rather limited. Today the more inclusive term, ‘occupations,’ is generally used. The emphasis is thus put not on the course through which the territory came under the foreign state’s control, whether through actual fighting or otherwise, but rather on the phenomenon of occupation.7

C. What is Trusteeship in International Law and Public Policy? I. General Concept The concept of trusteeship in international law and public policy seeks to explain the basis on which foreign rule is to operate and also, potentially, the basis on which it might be brought to an end.8 The introduction of international trusteeship can be understood in terms of a response to two distinct conceptions of the pre-existing governance structure in the territory. In the first place, covering colonial trusteeship and state-conducted foreign territorial administration under the mandate and trusteeship systems, the racialized concept of a “standard of civilization” was deployed to determine that certain peoples in the world were “uncivilized,” lacking organized societies, a position reflected and constituted in the notion that their “sovereignty” was either completely lacking or at least of an inferior character when compared to that of “civilized” peoples.9 In the second place, also covering certain forms of colonial trusteeship, foreign state-conducted territorial administration under the mandate and trusteeship systems, occupation and international territorial administration, foreign rule was or has been introduced after conflict, often in circumstances where governance in the territory has been degraded in some way by that conflict, for example, through the collapse of a defeated government and the destruction of infrastructure.10 Understanding the exercise of administrative prerogatives over territory in these two circumstances as “trusteeship” conceptualizes the relationship between the foreign actor and the territory and its people in a particular manner: the trustee/guardian entity is controlling the beneficiary/ward territory, acting on behalf of the latter entity – the “sacred trust of civilization” or the “civilizing mission.”11 7

E. Benvenisti, The International Law of Occupation (2004), 3–4 (footnotes omitted). See the sources cited in Wilde (note 1), 317, note 104, 318–319, note 107, 319–320, note 108. 9 Ibid. 10 Ibid. 11 Ibid. 8

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II. Colonial Trusteeship Trusteeship became associated with certain (but by no means all) forms of postRenaissance European colonialism, as illustrated in Edmund Burke’s influential recitation of the concept in relation to British rule in India in 1783: all political power which is set over men and … all privilege claimed or exercised in exclusion of them, being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit. If this is true with regard to every species of political dominion, and every description of commercial privilege, none of which can be original, self-derived rights, or grants for mere private benefit of the holders, then such rights, or privileges, or whatever you choose to call them, are all, in the strictest sense, a trust.12

A concept of trust was implicit in Article VI of Chapter I of the General Act of the Berlin Conference of 1884–1885, under which the colonial powers in Africa were bound to: “… watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being.”13 In the United Nations Charter, the Declaration Regarding Non-Self-Governing Territories states: Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self- government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories.14

As these quotes suggest, the concept of trust was understood by its proponents as a way of placing colonial rule on an ethical, humanitarian footing.15 The move

12

E. Burke, Speech on Mr Fox’s East India Bill, 1 December 1783, reproduced in: E. Burke, The Speeches of the Right Honorable Edmund Burke in the House of Commons, and in Westminster-Hall, 1816, vol. II, 411 (emphasis in original). 13 See General Act of the Conference respecting (1) Freedom of Trade in the Basin of the Congo; (2) the Slave Trade; (3) Neutrality of the Territories in the Basin of the Congo; (4) Navigation of the Congo; (5) Navigation of the Niger; and (6) Rules for Future Occupation on the Coast of the African Continent, signed at Berlin, 26 February 1885, 165 CTS 485, Chapter I, Art. VI (hereinafter Berlin Conference General Act). 14 Art. 73, Charter of the United Nations (UN Charter), San Francisco, 26 June 1945, United Nations Yearbook (1946–1947), 831. 15 See, e.g., H. D. Hall, Mandates, Dependencies and Trusteeship (Stevens and Sons, 1948), 98–99 and sources cited therein; W. Bain, Between Anarchy and Society: Trusteeship and the Obligations of Power, 2003, passim, especially 1, 53 et seq., and ch. 2. This in turn reflected one of the reasons for the idea of the standard of civilization as explained by Gerrit Gong: “Europe’s need to explain and justify its overlordship of non-European

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to humanize colonial rule arose in part from concerns related to that which “trusteeship” administration was called upon to replace: earlier forms of state colonialism and/or control by corporate entities like trading companies understood in terms of neglect, exploitation, profit, and general irresponsibility.16

III. Mandate and Trusteeship Arrangements Trusteeship was formally adopted as the basis for the mandate and trusteeship systems after the two world wars; these arrangements were conceived in relation to the detached colonies of the defeated powers.17 The trusteeship system also covered former mandated territories, and was open to those territories “voluntarily placed under the system by States responsible for their administration,” but no placements in the latter category were made.18 The twin notions of incapacity for self-administration, and foreign state administration on a trusteeship basis, were the hallmarks of both systems. According to Article 22 of the Covenant, the people of mandated territories were deemed “not yet able to stand by themselves” and the administration of mandated territories was to be a “sacred trust of civilization.”19 In the UN Charter, the concept of trust is reflected in the name given to the arrangements; the designation of incapacity, by contrast, is made by implication, in the provision for trusteeship itself, and the objectives for trusteeship administration such as the promotion of development.20 The imperial concept of colonial trusteeship was, thus, refashioned as the explicit basis for a set of modified colonial arrangements. 21

IV. Occupation as Trusteeship As far as the relationship between occupation and trusteeship is concerned, (Sir) Arnold Wilson stated in 1932 that … enemy territories in the occupation of the armed forces of another country constitute (in the language of Article 22 of the League of Nations Covenant) a sacred trust, which countries in other than merely military terms”; G. W. Gong, The Standard of ‘Civilization’ in International Society, 1984, 42. 16 See the sources in Wilde (note 1), 321, note 116. 17 Ibid., 163–164, note 43 (on the mandates system), 164, note 44 (on the trusteeship system). 18 Ibid., 164, note 44, 306–307, note 69. 19 Ibid., 322, note 119. 20 Ibid., 322, note 120. 21 Ibid., 322, note 121.

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must be administered as a whole in the interests of both the inhabitants and of the legitimate sovereign or the duly constituted successor in title.22

Gerhard von Glahn considers occupation to operate on a trusteeship basis denoting a “temporary right of administration” operating “until the occupation ceases.”23 Eyal Benvenisti states that the “occupant’s status is conceived to be that of a trustee.”24 As with ideas of colonial trusteeship, those who advocate understanding occupation as trusteeship explain this in terms of its reflection of an underlying objective to humanize the basis for and the conduct of occupations. Occupation as trusteeship reflects the policy objective that, as mentioned earlier, occupying powers do not enjoy sovereignty over the territories concerned and are to be prevented from claiming such sovereignty through an obligation to this effect in occupation law.25 The objective is promoted by conceiving the relationship between the occupant and the occupied territory as one of trusteeship; the notion of acting on behalf of the beneficiary obliges the occupier to protect, not alter (or claim for itself) the sovereignty of the occupant.26 Gerhard von Glahn conceives occupation on a trusteeship basis on the grounds that “the legitimate government of an occupied territory retains its sovereignty” which is only “suspended in the area for the duration of the belligerent occupation.”27 Elaborating on this theme, Eyal Benvenisti states that [t]he foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through the actual or threatened use of force. Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. From the principle of inalienable sovereignty over a territory spring[s] the constraints that international law imposes upon the occupant. The power exercising effective control within another sovereign’s territory has only temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, the occupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of a trustee.28

The central “humanizing” element of the occupation law conception of trusteeship, then, is the objective of preventing occupations from enabling occupiers to obtain title through force, echoing the reason why rule over the mandated and trust 22

A. Wilson, The Laws of War in Occupied Territory, Transactions of the Grotius Society 18 (1932), 38. 23 G. von Glahn, Law Among Nations: An Introduction to Public International Law, 7th ed. 1995, 668. 24 Benvenisti (note 7), 6, footnote omitted. 25 On this, see text accompanying note 4. 26 On the notion of acting on behalf of the beneficiary, see the quote accompanying note 12. 27 von Glahn (note 23), 668. 28 Benvenisti (note 7), 5–6, footnote omitted.

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territories was also conceived in this way. More broadly, conceiving occupation as “trust” is an attempt to rein in the impulse of occupying states to use the occupation to pursue self-serving objectives.29 The “humanitarian” norms of occupation law concerned with protecting individuals and maintaining order can similarly be understood as a means of humanizing the conduct of occupations, seeking to rule out, for example, abusive practices such as sexual assault and rape, retributional attacks on civilians, pillage, and the failure to restore order historically associated with occupations.30 The humanitarian explanation for the norms of occupation law is further reinforced by the instrumental approach of those who seek to define the factual test of “occupation” which, if met, triggers the substantive obligations, in terms of activity that they consider to require regulation by the obligations that would be so triggered.31

V. The Twin Objectives of Trusteeship: Care and Improvement The conception of occupation as trusteeship aimed at safeguarding the status quo is at odds with how many occupations have been conducted and, more broadly, how trusteeship as it developed in the context of colonialism sometimes operated, where transformation of the political and economic system of the territories concerned was evident. Generally, in many instances of trusteeship as defined here, the role of the trustee was understood to have a two-part character: first, to care for the ward, and second, to exercise tutelage of the ward in order that it can mature and eventually care for itself. In the context of colonialism, then, the idea of the “civilizing mission” was to govern in such a way as to address the perceived incapacity for self-government, or at least governance that met the standard of civilization, and also to build up local capacities, sometimes with the aim to render self-administration, meeting the standard, eventually possible.32 The general contours of this idea are evident in the earlier quotation from the General Act of the Berlin Conference, with its obligation to “watch over” and “care for … improvement.”33 In the same way, Article 22 of the League Covenant articulates the “sacred trust of civilization” forming the basis for the mandate ar29

Discussing the rationale for occupation law, Eyal Benvenisti states that “… in the heart of all occupations exists a potential – if not an inherent – conflict of interest between occupant and occupied,” Benvenisti (note 7), 4. 30 On these norms, see the sources cited in Wilde (note 1), 308, note 74, 308–309, note 75. 31 See the discussion and sources cited ibid., 325–326, note 134. 32 Ibid., 317, note 104, 318–319, note 107, 319–320, note 108. 33 Berlin Conference General Act (note 13), ch. I, Art. VI.

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rangements in terms of the “well-being and development” of the people in mandated territories;34 the provisions of the UN Charter concerning non-self-governing territories and trust territories are similarly concerned with ideas of both care and advancement.35

VI. Common Concept of Trusteeship Drawing the foregoing remarks together, the idea of humanizing the conduct of occupation that is the underlying idea of occupation law can be seen as a species of the broader normative enterprise of humanizing the conduct of foreign rule through the concept of trusteeship. So in one sense the ideas underlying the Hague conception of occupation built on ideas in the Berlin General Act, and would find later expression in the Covenant and the Charter.

D. How do Occupation and Trusteeship Relate to International Territorial Administration? I. Trusteeship Characteristics Where, then, does international territorial administration fit into the general concept of trusteeship, and how does it relate to occupation? The concept of “trusteeship” is also relevant to the case of ITA, an activity which has occurred since the creation of the League of Nations.36 Although the word trusteeship is not used officially in relation to ITA, the activity it involves clearly manifests the central elements of a trust relationship: a “ward” people placed under the care of an international organization, which performs administrative functions understood as not being for its own gain but, rather, in the ward’s own interest, with the dual role of remedying perceived incapacities for governance and transforming the situation so that these incapacities no longer exist and the local population is able to run its own affairs.37 In East Timor, for example, the United Nations Transitional Administration in East Timor (UNTAET) was introduced on the basis that, 34

On this, see further the dictum of the International Court of Justice in the International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, 128,131. 35 For non-self-governing territories, see UN Charter (note 14), Art. 73; for trust territories, see ibid., Art. 76. 36 On ITA generally, see Wilde (note 1), and sources cited therein. On its history, see ibid., ch. 2. 37 Ibid., passim and in particular ch. 6 and 343–363 and sources cited therein.

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in the short term, local people were deemed incapable of self-administration, the objective being to both provide governance and build up local capacities.38 Despite this, many commentators resist associating ITA with state-conducted trusteeship and occupation.

II. Michael Bothe and Thilo Marauhn’s “Security Council Trusteeship Administration” Concept The leading academic opponents of comparing ITA with state-conducted trusteeship and occupation are Michael Bothe and Thilo Marauhn. Bothe and Marauhn conceptualize UNMIK and UNTAET as “Security Council trusteeship administration.”39 However, although they use the word “trusteeship,” they resist any comparison between their concept and state-conducted trusteeship. In the first place, they state that [t]he concepts of occupation, protectorate and trusteeship as such are ideologically still linked to particular political and historical situations, related to traditional armed conflict or to colonialism. Simply referring to or relying upon these concepts may give rise to fears that the UN provides a forum for a new form of ‘benevolent colonialism.’40

What, however if one were not simply to refer to or rely upon such concepts, but, rather, consider their potential significance in detail? Should this not be done? And even if it isn’t, and a simple reliance on such concepts led to the fears outlined, would the fears necessarily be wrong, as opposed to being unproved? The passage continues: “[i]n order to avoid such misconceptions it is necessary to take a closer look at the context of the UN Security Council mandated interim administrations in Kosovo and East Timor.”41 Bothe and Marauhn move to a consideration of the two missions within the taxonomy of peace operations exclusively, and conclude that, if one thinks about them “from the perspective of peacekeeping and peace-building,” then “the concept, 38 On UNTAET, see ibid., 2–5, 2, note 2, 6 note 16, 9–11, 16–17, 20, 26, 32, 34, note 95, 39, 42, note 116, 43, 47, 55, 60, 75, 82–83, 93, 95, 100, 172, 183–189, 198, 206–207, 213, 222, 223, note 130, 225–231, 234, 251, note 45, 252, 255, 257, 259–261, 265, 272– 274, 275–277, 287, 290, 292, note 12, 294–295, 298, note 31, 344–348, 349, note 240, 351, 359–362, 376, note 341, 379–380, 382–384, 405–407, 413, 419–420, 424–426, 427, note 553, 430, 439, 433, 441, note 11, 443, 448, 450, 452, sources cited therein, and the works listed ibid., in the List of Sources, section 5.1.3 and the relevant parts of section 5.1.1. 39 M. Bothe/T. Marauhn, UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration in: C. Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment, 2002. 40 Ibid., 217, 218, footnote omitted. 41 Ibid.

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legality and limitations of such operations can be more easily discussed without giving rise to concerns about neo-colonialism.”42 So the authors identify the potential relevance of the colonial analogy, but pull back from it immediately, choosing to try to find a way of thinking about the missions other than through the colonial comparator, via the “context” of the missions and the “perspective” of peace operations. Why the classification of the missions as peace operations somehow takes them out of the arena of any meaningful comparisons with colonialism is unexplained. More fundamentally, the authors seem to take as their premise a need not to “give rise to concerns about neocolonialism.” But one cannot avoid such concerns by failing to face up to them. Such an approach is as limited as the approach they highlight of “simply referring to or relying upon” colonial comparisons: it may be right, it may be wrong, but its advocates have not provided any substantive argumentation to explain why they have adopted it. Bothe’s and Marauhn’s attempt to situate UNMIK and UNTAET within a broader policy framework avoids the colonial comparator; the “trusteeship” in their notion of “Security Council trusteeship administration” is based on an analogy from domestic law concepts of trust in the area of property, from which they assert that “the establishment of a foreign presence in a territory … may be termed a trusteeship administration.”43 Addressing UNMIK and UNTAET, they conclude that [t]he concept of trusteeship seems applicable because such an administration is exercised in the interest or on behalf of another corporate body, the ‘old’ or ‘new’ sovereign and/or the population of the territory. This other corporate body, in the technical sense, can be considered to be the ‘cestui que trust’ or the ‘trustor’ [beneficiary]. While there may be cases in which it is difficult to identify the trustor and while there may even be cases involving several trustors, this does not affect the underlying concept as such.44

Bearing in mind these observations in the light of the earlier review of international trusteeship herein, one might conclude that, in acting in the way described by the authors, UNMIK and UNTAET are nothing new and fit within the general idea of international trusteeship as articulated, for example, by Edmund Burke. However, Bothe and Marauhn take a different approach. They argue that the two missions are merely “first steps” towards “Security Council mandated trusteeship administration.”45 UNMIK and UNTAET constitute “modern trusteeship” and

42 43 44 45

Ibid., 219. Ibid. Ibid., 220 (footnote omitted). Ibid., 222.

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“demonstrate the need to re-conceptualize the trust in public international law.”46 The authors acknowledge the existence of earlier ITA projects, but insist that [n]one of these cases have, however, been extensively discussed as an example for a modern trust under public international law. Obviously, the simple fact that an international organization assumes governmental powers does not seem to be the decisive criterion for distinguishing such a modern trust [i.e., UNMIK and UNTAET] from other forms of second-generation peacekeeping … 47

For Bothe and Marauhn, then, the mere fact that the potential significance of trusteeship to these earlier projects hasn’t been “extensively discussed” means that it cannot exist. The authors don’t explain why this particular conclusion is chosen over, say, the explanation that commentators missed the significance of trusteeship. As with their earlier denial of the relevance of colonialism by seeking to avoid an exploration of the potential for such relevance, here the authors find evidence for the idea that UNMIK and UNTAET, as “trusteeships,” are entirely “new” simply from the absence of much discussion about the relevance of trusteeship to the earlier ITA projects. Bothe and Marauhn do offer substantive reasons for newness: the projects are “unique” within UN territorial administration missions because of their long-term objectives, the fact that they are acting “fully as interim governments” (this means “their tasks go far beyond the scope of past UN peacekeeping operations”), they have plenary competence, and they cover territories which “form part of another State and whose future status is not quite certain.”48 Taking all this together, “the characteristic criterion” distinguishing UNMIK and UNTAET “… from other, more traditional forms of peacekeeping, is that the UN in Kosovo and East Timor has replaced the government of the State to which the territory in question belongs in toto.”49 Even if one might dispute this picture of UNMIK and UNTAET as exaggerated – what of the United Nations Temporary Executive Authority in West Irian (UNTEA) in the 1960s and the United Nations Transitional Administration in Eastern Slavonia, Baranja, and Western Sirmium (UNTAES) in the 1990s – assuming that, in some ways, the two missions can be considered unique, what is served by treating them entirely separately from other ITA missions bearing in mind what is lost in 46

Ibid. Ibid., 223. For the discussion of the earlier projects see ibid., 220–221. 48 Ibid., 224. Whereas Kosovo during the UNMIK period did indeed form part of a state (what was, when the mission commenced, called the Federal Republic of Yugoslavia), East Timor did not form part of any state in the sense that another state enjoyed sovereignty, meaning title, over it. See the discussion in Wilde (note 1), ch. 4, section 4.5.3 (on Kosovo) and ch. 5, section 5.7 (on East Timor). 49 Bothe/Marauhn (note 39), 224. 47

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terms of being able to appreciate commonalities?50 As the earlier exploration of state-conducted forms of international trusteeship suggests, a situation can be regarded as one of trust – some sort of control by an outside actor exercised ostensibly on behalf of the local population – even if it does not manifest the scale and ambition of the Kosovo and East Timor projects.

III. Do Trusteeship and Occupation Presuppose Imposition? One further feature of the overall “trusteeship” concept that might challenge the notion of a common policy institution is the question of whether or not it presupposes that the arrangements were “imposed” on the territories concerned. One of the leading international relations scholars of international trusteeship, William Bain, sees imposition as crucial to the general concept.51 However, this is rooted in Bain’s commitment to state sovereignty and sovereign equality; trusteeship itself – as articulated by Edmund Burke for example – does not denote imposition as an essential component.52 But does occupation under the international law of occupation presuppose imposition, again potentially placing into question the meaningfulness of any collective treatment of imposed and consensual arrangements of foreign territorial control? Given that imposed occupations are usually brought about through the use of military force, the debate here intersects with the general issue discussed earlier of whether the definition of “occupation” only covers those situations that have their origins in warfare.53 Certain scholars, including Eyal Benvenisti, incorporate the absence of consent by the host sovereign entity as a key element of their definitions of occupation.54 Others, including Adam Roberts, include both consensual

50 On this, see further the discussion in Wilde (note 1), ch. 1, section 1.2.1. On UNTEA, see ibid., 4, 13, 43, 50–51, 50–51, note 18, 60, 94, 153, 167–170, 188, 193, 195–196, 199, 205, note 57, 233, 242, 245, 266, note 98, 274, 278, 345, 380, 403–405, 437, 440; on UNTAES see ibid., 56, 58, 58, note 37, 142, note 202, 243. 51 Bain (note 15), 149–154, and the discussion in Wilde (note 1), 346–353. 52 See the discussion in Wilde (note 1), 346–353. 53 See supra, text accompanying note 6 et seq. 54 Benvenisti’s definition includes the requirement that the control is exercised “without the volition of the sovereign of the territory,” Benvenisti (note 7), 4; see also S. Vité, L’applicabilité du droit international de l’occupation militaire aux activités des organizations internationales, International Review of the Red Cross (IRRC) 86 (issue 853) (2004), 14, and UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, 274, ch. 11, paras. 11.1.1 and 11.2.

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and non-consensual occupations within their treatment of the topic.55 If occupation is understood to be limited to arrangements understood to have been “imposed,” then it cannot be seen to map across the concept of trusteeship generally.56 Steven Ratner argues that occupation should be viewed as covering both consensual and imposed arrangements.57 As mentioned, Adam Roberts appears to endorse this view; whereas he speculates that the tendency of characterizations of many of the peace operations since the end of the Cold War, including certain ITA missions, not to use the term “occupation” might be explained in part because of the degree of consent that was forthcoming in relation to them, he nonetheless affirms the applicability of occupation law to consensual arrangements.58 For present purposes, this broader definition of occupation speaks to the essential commonality concerning the structure of external control that exists across occupation and all the other forms of international trusteeship.

IV. Does Occupation only Cover State-Conducted Activity? Steven Ratner’s argument that the category of “occupation” should be broad enough to cover both imposed and consensual arrangements is made as part of a more general thesis advocating the conceptualization of ITA within the occupation paradigm.59 One approach to defining “occupation” that might seem to prevent this is the idea that the term only covers activities by states, not also international organizations. Clearly the law of occupation traditionally understood is so limited.60

55

See generally A. Roberts, What is Military Occupation?, British Yearbook of International Law (BYIL) 55 (1984), passim, and the view expressed in: A. Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, American Journal of International Law (AJIL) 100 (2006), 603, that the existence of formal consent does not render impossible the applicability of the law of occupation. 56 So, for example, in setting out a definition of occupation that appears to exclude arrangements involving consent, the UK Manual of the Law of Armed Conflict invokes certain ITA projects as examples of situations that would be excluded; see Manual of the Law of Armed Conflict (note 54), 274, ch. 11, paras. 11.1.1 and 11.2. 57 S. R. Ratner, Foreign Occupation and International Territorial Administration: The Challenges of Convergence, European Journal of International Law (EJIL) 16 (2005), 697–698. 58 See the discussion in Wilde (note 1),354, note 258. 59 Ratner (note 57). 60 See Wilde (note 1), 354–355, note 260.

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Perhaps because of this, some commentators have defined occupation itself as being limited to the actions of states.61 In the same way, some commentators seem to understand occupation as always something following armed conflict, perhaps reflecting the traditional Hague-era conception of occupation discussed earlier.62 From this, it is sometimes suggested that the main commonality between occupation and ITA relates only to those ITA missions that come after conflict.63 More broadly, for many, the term “occupation” is pejorative, and is therefore resisted as inappropriate for the ITA missions.64 However, if one wishes to foreground, not avoid, normative implications, whether or not they are pejorative, the activity of state-conducted occupation does bear important similarities with ITA; it is more helpful to emphasize the similarities, rather than the differences, between the two.65 As Steven Ratner states, “both missions can resemble each other in the eyes of those living in the occupied or administered territory” and, as Richard Caplan states, “many of the challenges between the two may be similar …”66 Ratner argues that … the disconnect between the ways international law and organizations have conceptualized occupations and territorial administrations and the ways these missions are actually carried out … is no longer tenable. In fact, the two sorts of operations share a great deal, and lines separating them, adopted by international elites and reflected in international law, are disappearing. Although numerous works have examined state occupations or international administrations separately, my claim here is that only an understanding of them together will enable both lawyers and policy-makers to develop optimal doctrine and operating procedures …67

So Ratner chooses to define occupation broadly, as “control of territory by outside entities.”68 As the final part of the longer quotation above indicates, the objective is to develop a taxonomy of interventions in order to be able to compare like with like on two normative/operational issues: the legal framework and the legitimacy of coercion used during such missions.69 The analysis offered earlier in the present piece suggests that such a taxonomy also has broader utility in emphasizing the commonality that exists in terms of the nature of the activity performed and the policies with which it is associated. 61

See the discussion ibid.,, 355, note 261. The earlier discussion is located in the text accompanying note 6 et seq. 63 See the sources and commentary in Wilde (note 1), 308, note 74, and 355, note 263. 64 Ibid., 355, note 264. 65 See further the discussion ibid., 356, note 265. 66 Ratner (note 57), 696 and R. Caplan, International Governance of War-Torn Territories: Rule and Reconstruction, 2005, 3. 67 Ratner (note 57), 697 (emphasis in original). 68 Ibid. 69 See ibid., passim. 62

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V. Holistic Category of “Trusteeship” Encompassing Colonialism, Occupation and International Territorial Administration Although there is considerable resistance amongst commentators and in public discourse generally to drawing parallels between colonialism and occupation, on the one hand, and international territorial administration, on the other, if one focuses simply on the underlying enterprise being engaged in – as opposed to, say, differences ascribed to the normative character of the administering actors involved – the trusteeship concept illuminates a commonality across foreign territorial administration generally. This commonality has been more apparent to expert commentators in the past than it seems to be to observers at present.70 Writing in 1939, Quincy Wright stated that the League of Nations’ administrative activities in Danzig and the Saar were “analogous” to the mandate system.71 Discussing the League administration in the Saar and the mandate arrangements, H. Duncan Hall asserted in 1948 that [w]hat matters is the substance and not the form. The Saar Territory was under the Saar Governing Commission and not the Permanent Mandates Commission … such differences are largely a matter of the internal economy of the League …72

Discussing in 1975 the character of the administrative mandate given to the UN Council for South West Africa/Namibia, Itse Sagay stated that … the legal status of the United Nations is that of a trustee, rather than a sovereign. Its political relationship with the mandated territory is that between an administrative authority, or a de jure government and a territory under its rule. From the point of view of the extent of powers and authority, there is no difference between the position of the United Nations in South West Africa, and a sovereign authority in its own territory. However, fundamental and decisive differences exist with regard to the aims and the goal of the United Nations in the Territory, and its corresponding obligations, and the aims and goal of a sovereign authority in its own territory. In the first place, the United Nations’ administration is carried out primarily in the interest and for the benefits of the inhabitants of the Territory; an indispensable element of a trust regime. A sovereign authority in its own territory, on the other hand, rules primarily for its own benefit, or could do so lawfully, while the United Nations cannot. 70 On the popular resistance to drawing these comparisons, see the discussion in Wilde (note 1), ch. 8, section 8.1. 71 Q. Wright, Mandates Under the League of Nations, 1930, 101. On the League of Nations administrative activities in the Free City of Danzig, see Wilde (note 1), 11, 26, 49, 49, note 12, 60, 94, 111, 114, 114, note 30, 116, 121–127, 128, 148–150, 213–214, 216, 227–228, 233–234, 244–245, 248, 274, 276, note 147, 287, 300, 343, 365, 370, 376; on the League administration of the Saar territory, see ibid., 11, 26, 42, 49, 49, note 13, 56, 60, 94, 108, 111–114, 128, 148, 150, 155, 193, 196–197, 199–202, 208, 210, 212, 216, 218–219, 225, 227, 229, 233, 241–248, 265, 269, 274–276, 343, 344, note 217, 365, 370–371, 376. 72 Hall (note 15), 11. See further Wilde (note 1), 343, note 216.

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Moreover one of the specific and fundamental obligations of the United Nations is to prepare the mandated territory for immediate independence. In the case of a sovereign authority, the position is the same where a colony is concerned. If, however, the territory concerned is its home territory the question of independence would not even arise.73

In foregrounding the idea that administration is performed by an external actor “primarily in the interest and for the benefits of the inhabitants of the Territory,” Sagay reflects the general way in which this activity has been understood by those involved in it. In describing the activity in question in terms of trusteeship, Sagay’s approach suggests a common link between colonial trusteeship, the mandate and trusteeship arrangements, the concept of occupation trusteeship, and ITA. All of the practices can be regarded as species of a common institution, “international trusteeship.” The reasons that give rise to these arrangements, the way the arrangements operate and seek to alter the political and economic regime in the territories concerned, and the extent to which attempts are made to improve local capacities may differ significantly between them, but the central conception of alien actors exercising administrative control ostensibly on behalf of the people of the territories is the same.74 Many of the general areas of policy promoted in the context of state-conducted trusteeship are reflected in the purposes and policies of ITA.75 For instance, colonial-era policies of population transfers76 resonate with the use of ITA to enable migration policy, such as the work of the Office of the High Representative (OHR) in Bosnia and Herzegovina in using property legislation as a way of enabling the transfer of displaced persons to their pre-war homes.77 Similarly, the 73 I. Sagay, The Legal Aspects of the Namibian Dispute, 1975, 268–269. See also ibid., 271. On the UN Council for South West Africa/Namibia, see Wilde (note 1), 21, note 63, 50–51, 51, note 19, 94, 97, 153, 165, note 48, 170–172, 188, 205–206, 205, note 57, 208, 212–213, 216, 226–277, 233, 245, 249, 344, 360, 364, 377, 379, 380. 74 Eyal Benvenisti states that UNTAET and UNMIK are “trusteeship of the kind the law of occupation is designed to address,” Benvenisti (note 7), xvi. See also the discussion in Roberts, Transformative Military Occupation (note 55). 75 See generally, Wilde (note 1), chs. 6 and 7 (on purposes and policies associated with ITA), ch. 8, sections 8.3.1 and 8.3.2 (on purposes and policies associated with other forms of foreign territorial administration). 76 See C. Drew, Population Transfer: The Untold Story of the International Law of Selfdetermination, unpublished doctoral thesis, LSE 2006 (on file at Senate House Library, University of London), ch. 2. 77 On OHR generally, see Wilde (note 1), 9, note 28, 15–16, 18, 28, 32, note 88, 35, 36, 42, 45, 48, note 6, 60, 64–69, 64–65, note 60, 66, note 66, 68, note 70, 70, 72, 75, 80–82, 91–94, 108, 135, 138–139, 141, 144, 149–150, 204, note 47, 208–211, 213–217, 219–220, 222–224, 227–228, 230, note 143, 231–232, 234, 244–246, 249–250, 255, note 57, 256, 259, 261, 265, 272–273, 276, 278, 282–286, 290–291, 293, 294, 301, 312, 346–350, 352,

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colonial model of legislative reform, whereby local laws were altered if they were incompatible with the “standard of civilization,”78 was adopted by UNMIK in Kosovo and UNTAET in East Timor. The two missions determined from the outset the applicable law in the territories subjected to their administration, accepting that existing law was to be applicable only insofar as it was compatible with the standards of international human rights law; in the case of East Timor, this general test was supplemented with the repeal of certain expressly stipulated laws.79 Obviously, in some ways ITA does not replicate the colonial paradigm, for example in not facilitating the direct extraction of human resources (the exploitation of material resources, however, has sometimes been a feature of ITA).80 In the general mode of operation, however – the use of territorial control to pursue certain polices concerning the nature of governance – there is a clear link, and in many of the substantive policies the same ideas are in play. To bring together the foregoing analysis on the relationship between occupation, colonial trusteeship, the mandate and trusteeship arrangements and ITA, it might be said that there is a general institution in international public policy that can be termed “international trusteeship.” This policy institution covers a relationship of administrative control by an international actor or a group of such actors – whether states or international organizations – over a territorial unit the identity of which is understood as something “other” than that of the administering actor or actors, in most cases because of the lack of title, and is conceptualized in terms of the administering actor or actors performing the administrative role on behalf of the administered territory. How should the issue of rights and obligations in the various manifestations of international trusteeship be understood, and what is the significance to this enquiry of considering them holistically as trusteeship? The enquiry is pursued in the following four sections. First, the general questions that need to be resolved in order to determine what law does apply are set out. Secondly, general questions relating to the question of what law should apply are considered. The third stage continues the analysis on what the law should be, considering the specific issue of accountability, and the relevance of the trusteeship concept to this issue. Finally,

353, note 251–252, 359–360, 382–383, 404–405, 412, 426, 428, 430, 436, 446–447, 449, 451, 455; on this particular activity concerning property legislation, see ibid., ch. 6, text accompanying note 115 et seq. and sources cited therein. 78 See A. Anghie, Imperialism, Sovereignty and the Making of International Law, 2005, 169, text accompanying note 208. 79 See the commentary and sources cited in Wilde (note 1), 228–229, note 142. 80 Ibid., 359 note 282.

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in the fourth stage, the significance to this general enquiry of the self-determination entitlement is reviewed.

E. Applicable Law – What Law Does Apply? I. General Issues Although the nature of the activity across the different manifestations of trusteeship shares a certain elemental commonality, the applicable normative regime is, of course, highly variated. One axis of variety is the different obligations that can operate as between particular international legal persons. For example, during the CPA occupation of Iraq, the UK was bound under its international obligations not to enable the death penalty in Iraq, but the US was under no such international obligation.81 The difference is acute when state-conducted trusteeship is compared with the same activity conducted by international organizations, since these entities are not bound in their own right to international treaties on occupation law or human rights.82 Another axis of variety across individual manifestations of trusteeship concerns whether or not the Security Council is involved in ostensibly providing additional authority and competence to the administering authorities, an issue with potential relevance to both applicable law and the question of legal responsibility.83 The legal 81

The UK is a party to regional and global instruments imposing the obligation to abolish the death penalty. See Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, Strasbourg, 28 April 1983, Council of Europe Treaty Series No. 114, ratified by the United Kingdom on 20 May 1999 and Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, Vilnius, 3 May 2002, Council of Europe Treaty Series No. 187, ratified by the United Kingdom on 10 October 2003 (source for ratification dates: Council of Europe Treaty Office, at http://conventions.coe.int/); Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, New York, 15 December 1989, UNTS, vol. 1642, 414, ratified by the United Kingdom on 10 December 1999 (source: Office of the UN High Commissioner for Human Rights, at http://www.ohchr.org). The US is not party to equivalent treaty obligations. The question of whether these obligations, if binding, apply extraterritorially, is considered infra, text accompanying note 88, et seq. 82 On the issue of the application of the laws of war and the law of occupation generally to international organizations, see the sources cited supra, note 60. 83 See R (on the application of Al Jedda) v. Secretary of State for Defence (2007), UKHL 58; Behrami and Behrami v. France and Saramati v. France, Germany and Nor-

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significance of this authority, when it is forthcoming, in terms of applicable law implicates a further, broader issue of how the relationship between potentially overlapping regimes of law is understood and mediated. Here, account needs to be given to the special modalities that exist in international law addressing the situation of a multiplicity of applicable legal regimes, notably Article 103 of the UN Charter as far as Security Council-authorized action is concerned, the idea of obligations with jus cogens status, and the lex specialis status that international humanitarian law has in the armed conflict context.84 In seeking to interpret the relevant applicable treaties, the standard methodological choice between an originalist and teleological approach has to be made. To give the example of a human rights treaty, the European Convention on Human Rights (ECHR), is one to look only at the original purpose of the Convention on the issue, whatever that might be, as the European Court of Human Rights appeared to favor in the Bankoviü case concerning the potential applicability of the treaty in the context of the NATO bombing of what was then called the Federal Republic of Yugoslavia in 1999?85 Or, alternatively, must one also take on board the notion of the treaty articulated in the Tyrer case as a “living instrument, which … must be interpreted in the light of present-day conditions,” a dictum which, although not made in the context of an extraterritorial situation, is regarded as a general principle of Convention interpretation?86 way, Appl. Nos 71412/01 and 78166/01, European Court of Human Rights, Admissibility Decision, 31 May 2007, available at http://www.echr.coe.int. 84 On interplay with Security Council authority, see Joined Cases C-402/05 P and C415-05 P Kadi and Al Barakaat International Foundation v. Council and Commission, European Court of Justice, judgment of 3 September 2008, available at http://curia. europa.eu/en/content/juris/index.htm. See also the decision of the UK House of Lords in the Al Jedda case and the decision of the European Court of Human Rights in the Behrami case (both cited supra, note 83). On the application of human rights law to armed conflict and the interplay between it and the law of armed conflict and occupation law, see the sources cited in R. Wilde, Are Human Rights Norms Part of the Jus Post Bellum, and Should They Be?, ch. 9 in: Carsten Stahn/Jann K. Kleffner (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace, 2008, 163,169, note 17. On the relationship between different areas of law more generally, see the sources cited in ibid., 172, note 24. 85 Bankoviü v. Belgium and 16 Other Contracting States, App. No. 52207/99, European Court of Human Rights (Grand Chamber), Admissibility Decision, Reports 2001-XII, in particular paras. 63–65. 86 Tyrer v. United Kingdom, Appl. No. 5856/72, European Court of Human Rights, Series A, No. 26 (1978), para. 31. See also Soering v. the United Kingdom, Appl. No. 14038/88, European Court of Human Rights, Series A, No. 161 (1989), para. 102; Dudgeon v. the United Kingdom, Appl. No. 7525/76, European Court of Human Rights, Series A, No.

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And what is the relevance of state practice to the enquiry? Again in the Bankoviü case the European Court of Human Rights cited the general lack of derogations entered by states in relation to certain foreign activities as somehow being indicative of a view taken by them that treaty obligations did not apply extraterritorially to the activities in question.87 Drawing such a conclusion simply from this evidence is, however, difficult. It may well be that the states concerned did not consider their obligations under the Convention to apply for reasons other than the foreign locus of the acts in question. For instance, in situations of armed conflict, those states could have considered that the Convention had somehow been overridden by humanitarian law, as the lex specialis applicable in the circumstances, or perhaps officials had simply not considered the issue, especially if the activity in question was short-lived. It might even be speculated that states took the view that the requirement of a declaration of derogation meant something different in the foreign context, with perhaps, when it was forthcoming, the existence of an international mandate for their foreign operations somehow regarded as constituting an implicit activation of the derogation regime without the need for an explicit statement to this effect.

II. Human Rights Law in Particular: Whether and How it Applies Extraterritorially Continuing with the extraterritorial application of human rights law, and considering it in more detail, some of the states that would be subject to the law here, because of their engagement in extraterritorial activity, make various arguments refuting applicability. For example, a secret memo prepared for the US Department of Defense in March 2003 and leaked in June 2004 reported that the US has “maintained consistently” that the International Covenant on Civil and Political Rights (ICCPR) “… does not apply [to the US] outside the United States or its special maritime and territorial jurisdiction, and … does not apply to operations of the military during an international armed conflict.”88 45 (1981); X, Y and Z v. the United Kingdom, European Court of Human Rights, Reports 1997-II; V. v. the United Kingdom [GC], Appl. No. 24888/94, para. 72, European Court of Human Rights, Reports 1999-IX; Matthews v. the United Kingdom [GC], Appl. No. 24833/ 94, Reports 1999-I, para. 39; Loizidou (Preliminary Objections), note 95, para. 71. 87 Bankoviü (note 85), para. 62. 88 US Department of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, 6 March 2003, available at http://www.ccr-ny.org/v2/reports/docs/Pentagon ReportMarch.pdf, p. 6 (last visited 28 August 2006). For the ICCPR, see the International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, 171. Denials

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Here, then, are two suggestions of non-applicability. Treating them in reverse order, in the first place is a suggestion concerning subject-matter: human rights law does not apply in situations of armed conflict. The implication of this contention is that the laws of war, on the one hand, and human rights law on the other, are mutually exclusive in terms of the situations in which they apply. When one area of law is in play, the other is not. The laws of war apply only in times of “war” and, in the case of occupation law, military occupation; human rights law applies only in times of “peace.” Whereas the first contention is correct,89 the second is difficult to sustain given the affirmation of applicability by several authoritative sources, including the International Court of Justice (ICJ) in the Nuclear Weapons and Wall Advisory Opinions, and the DRC v. Uganda case.90 A typical affirmation of the applicability of human rights law in times of “war” comes from the decision of the Inter-American Commission of Human Rights in the Coard case of 1999, which concerned the detention of seventeen individuals

of extraterritorial applicability of the ICCPR and also the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (10 December 1984, UNTS, vol. 1465, 85) have been made officially. In its statement before the UN Human Rights Committee in 2006, the US reiterated its “long-standing view […] that the Covenant by its very terms does not apply outside of the territory of a State Party.” Matthew Waxman, Head of US Delegation, Principal Deputy Director of Policy Planning, Department of State, Opening Statement before the Human Rights Committee, 17 July 2006, available at http:// geneva.usmission.gov/0717Waxman.html . The US position on the matter is detailed in Human Rights Committee, Consideration of Reports Submitted by States Parties under Art. 40 of the Covenant – Third periodic reports of States parties due in 2003: United States of America, UN doc. CCPR/C/USA/3, 28 November 2005, Annex I, Territorial Scope of Application of the Covenant. According to the UN Committee Against Torture, an equivalent position in relation to the CAT was articulated by the US in deliberations before them in 2006, where the US took the view that provisions in the CAT applicable to the “territory under the [State Party’s] jurisdiction” were “geographically limited to its own de jure territory” (Committee Against Torture, Consideration of Reports Submitted by States Parties under Art. 19 of the Convention, Conclusions and Recommendations: United States of America, UN doc. CAT/C/USA/CO/2, 25 July 2006, para. 15). 89 On the scope of application of the law of occupation, see the sources cited supra, note 4. 90 On the applicability of international human rights law in times of armed conflict, see the relevant sources, including the ICJ decisions mentioned and cited supra, note 84, and the provisions, cases and commentary relating to derogations in human rights treaties cited infra, note 115.

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by US military forces during the 1983 US invasion of Grenada.91 The Commission stated that … [while international] humanitarian law pertains primarily in times of war and the international law of human rights applies most fully in times of peace, the potential application of one does not necessarily exclude or displace the other. There is an integral linkage between the law of human rights and humanitarian law because they share a “common nucleus of non-derogable rights and a common purpose of protecting human life and dignity,” and there may be a substantial overlap in the application of these bodies of law. Certain core guarantees apply in all circumstances, including situations of conflict.92

Even if, then, human rights law can apply in armed conflict situations, what of the other supposed contention, that it doesn’t apply extraterritorially? The main human rights treaties on civil and political rights do not conceive state responsibility simply in terms of the acts of states parties, as is the case, for example, in Common Article 1 of the Geneva Conventions of 1949, in which contracting parties undertake “to respect and to ensure respect for the present Convention in all circumstances.”93 Instead, responsibility is conceived in a particular context: the state is obliged to secure the rights contained in the treaty only within its “jurisdiction.”94 Thus a nexus to the state – termed jurisdiction – has to be established before the state act or omission can give rise to responsibility. The consistent jurisprudence of the relevant international review mechanisms and the ICJ has been to interpret jurisdiction as operating extraterritorially in certain circumstances.95 A blanket denial of extraterritorial applicability is very difficult to sustain in the face of this extensive authority. In the jurisprudence and other authoritative interpretations, the key question has not been whether human rights law treaty obligations apply abroad, but, rather, in what circumstances this happens. The term “jurisdiction” has been understood in the extraterritorial context in 91

For the background to the case, see Coard v. United States of America, Case 10.951, Inter-American Commission of Human Rights, OEA/ser.L/V/II.106, doc.3rev. (1999), paras. 1–4. 92 Ibid., para. 39 (footnotes omitted). 93 Common Art. 1 of the Geneva Conventions of 1949. 94 See, e.g., ICCPR, Art. 2; Optional Protocol to the International Covenant on Civil and Political Rights, 19 December 1966, UNTS, vol. 999, 171, Art. 1; European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 4 November 1950, ETS No. 5, Art. 1; American Convention on Human Rights (ACHR), 22 November 1969, OAS Treaty Series No. 36, Art. 1; Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, 3, Art. 2; CAT (note 88), Art. 2. Some obligations are limited to the state’s territory: see, for example, Protocol No. 4 to the ECHR, 16 September 1963, Council of Europe Treaty Series No. 46, Art. 3. Note that the ECHR and its Protocols have separate provisions on applicability to overseas territories; see, e.g., ECHR, Art. 56. 95 See the sources cited in Wilde (supra note 84), 170, note 22.

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terms of the existence of a connection between the state, on the one hand, and either the territory in which the relevant acts took place – a spatial connection – or the individual affected by them – a personal connection – but within these two categories there is considerable uncertainty due to the sparse nature of case law, and a variety of views taken by states and expert commentators.96 Assuming that it has been determined how, if at all, the meaning of human rights law has been mediated through the interplay of this area of law with other applicable legal regimes, it is then necessary to determine what human rights law substantively amounts to in the extraterritorial context. All things being equal, does human rights law require the state to do, or not do, the same things in occupied territory as it does in its own territory? Relevant factors here include the profoundly different political basis for the state administrative presence, where it is acting as a foreign occupier rather than as representative of the people in the territory. Should the nature of the control exercised by the state somehow mediate the scope of its obligations? Should it matter that the state is not able to influence what happens in the foreign territory to the same extent as it can in its own territory? How might actions that might be considered justified by the special circumstances of insecurity and conflict that often prevail in the extraterritorial locus, for example security detentions, fit within what is permissible in human rights law? These and other issues feed into the question of what rights themselves mean in the occupation context, and how derogation provisions might be understood, including the issue about the requirement that an emergency “threatens the life of the nation.” In the particular context of the ECHR, might the “margin of appreciation,” whereby the state’s own determination as to the permissibility of restricting rights is deferred to, have special relevance in the foreign context?97

F. Applicable Law – What Law Should Apply? I. Why Consider this Question Any consideration of applicable law also needs to account for the debates about whether the law should apply. It might be suggested, by way of criticism, that to consider such a question is to move into analysis of the law as it should be rather 96

Ibid., 171, note 23. On the margin of appreciation, see, e.g., Handyside v. United Kingdom, Appl. No. 5493/72, European Court of Human Rights, Series A, No. 24 (1976); Dudgeon v. the United Kingdom (note 86); Christine Goodwin v. United Kingdom, Appl. No. 28957/95, European Court of Human Rights [Grand Chamber], Reports 2002-VI. 97

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than the law as it is. But legitimate forms of intellectual enquiry on the law should not be limited to the law as it is; also crucial is the need to appraise critically why the law exists, what the law should cover and, on the basis of such enquiry, how the law should change. What follows in the remainder of this piece is a consideration of the range of issues relating to international trusteeship that such an appraisal needs to take into account.

II. Occupation Law: Compatibility with Transformation and Adequacy as a Framework for Regulation The occupation of Iraq by the CPA in 2003 brought to prominence the longstanding question concerning the extent to which occupation law prevents occupying powers from transforming the political and economic structures of occupied territory, and, if so, whether its applicability should be questioned and/or modified or supplemented by other rules. Clearly, the notion that the territory is not to be considered part of the sovereign territory of the occupant is tied to the notion that the occupier should not be in the business of altering the economic and political status quo.98 Comparing annexation with political and economic transformation, Adam Roberts states that although they are: “… conceptually and legally very different, they do have one thing in common – they tend to involve extending to the occupied territory the type of political system adhered to by the occupying power.”99 This takes things back to 1907 (and beyond that, to the Hague Regulations of 1899), since the norm of occupation law most often cited to illustrate a status quo orientation is the obligation in the Hague Regulations that occupying states are obliged to respect, “unless absolutely prevented, the laws in force in the country.”100 Some scholars, such as Adam Roberts, seem to take a fairly expansive view of what is permissible under occupation law.101 Others, such as David Scheffer, argue that occupation law does have a strong status quo orientation and as such is at odds with the transformation agenda.102 On their own terms, the latter arguments are sometimes overstated when they are made in relation to all forms of international trusteeship. Some manifestations of it might not involve transformation – as discussed further below, UNTAES in Eastern Slavonia, for example, was primar98

On the issue of a lack of sovereignty as title, see supra, text accompanying note 4. Roberts, Transformative Military Occupation (note 55), 582–583. 100 Hague Regulations 1907 (note 3), Art. 43; see also, in identical terms, Hague Regulations 1899 (note 3), Art. 43. For commentary, see, e.g., Benvenisti (note 7), 7, note 1. 101 See the discussion and sources cited in Wilde (note 1), 324, note 129. 102 Ibid., 324, note 129, 441, note 11. 99

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ily concerned with enabling territorial transfer, rather than “state-building.”103 More fundamentally, however, these arguments assume that transformation is something that is legitimate and to be enabled by international law. This assumption will be considered further in due course. David Scheffer’s argument covers not only the question of occupation law prohibiting certain aspects of transformatory projects, but also, more broadly, whether by itself occupation law is sufficient as a general regime of regulation, given the wide-ranging activities engaged in during such occupations. He argues that “… the dominant premise of occupation law has been that regulation is required for the military occupation of foreign territory, but not necessarily for its transformation.”104 For Scheffer, it is necessary to move “beyond” occupation law, to a wider normative regime taking in “principles of modern international law pertaining, for example, to human rights, self-determination, the environment, and economic development …”105

III. Human Rights Law: Should it Apply? The suggestion that human rights norms are needed as part of the regulatory framework brings things back to the discussion of the extraterritorial application of that area of international law. The question of whether human rights law should apply relates to the earlier question of whether it applies, since one must consider what the object and purpose of international human rights law is in this regard. The norms of treaty interpretation, for example, require a consideration of the “object and purpose” of the instrument in question when construing the meaning of the substantive norms contained within it.106 Indeed, this form of enquiry is especially significant for issues where the relevant provisions are on their face unclear, the cases and other authoritative commentary provide only limited assistance, and state practice is not particularly helpful in suggesting a clear, consistent and unified position. As will be explained below, all of these elements are present in the case of the extraterritorial application of human rights law. One relevant issue of principle is the idea of the social contract: rooting the requirement of rights and their protection through law in the contract between members of the community and the state, which in turn provides the legitimacy for 103

On UNTAES generally, see supra, note 50. D. Scheffer, Beyond Occupation Law, AJIL 97 (2003), 848, footnote omitted. 105 Ibid., 843. 106 See Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 311, Art. 31 (a). 104

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the state.107 A traditional basis on which the community has been understood is in terms of nationality. Contractual theories, by definition, do not address requirements of justice arising in the context of the interaction between the community (and its officials) and individuals who do not belong to it. When “belonging” is defined according to nationality, foreigners are left outside the frame. Thus, John Locke excludes foreigners from the social contract and the protection of citizenship rights: … foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison; yet do not thereby come to be subjects or members of that common-wealth.108

Although ideas of rights and their protection through law have shifted so that most international law rights guarantees are not now understood as being tied to citizenship,109 contemporary rights discourse is perhaps still focused predominantly on the nexus between the state and its territory. John Rawls’ contractarian theory of justice, for example, concerns “the basic structure of society conceived for the time being as a closed system isolated from other societies.”110 Bodies representing three leading international judicial or quasi judicial institutions monitoring the application of international legal instruments on civil and political rights – the Human Rights Committee, the Inter-American Commission, and the European Court and Commission of Human Rights – have all made statements to the effect that as a matter of principle this area of international human

107 See, e.g., T. Hobbes, Leviathan, first published 1651; J. Locke, Two Treatises of Government, first published 1690; J. Rawls, A Theory of Justice, rev. ed. 1999. 108 Locke (note 107), 349. 109 In international human rights law, the shift away from nationality is effected through conceiving human rights obligations in relation to the state’s “jurisdiction” rather than its own nationals. On this conception of responsibility, see the sources cited supra, note 94. As noted by the Human Rights Committee in relation to ICCPR, “[i]n general, the rights set forth in the Covenant apply to everyone … irrespective of his or her nationality or statelessness,” Human Rights Committee, General Comment No. 15: The Position of Aliens under the Covenant (1986), para. 1, reprinted in: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.1 29 July 1994, 18 et seq. The preamble of the American Declaration of the Rights and Duties of Man states that “the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality,” American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948, OAS Res. XXX (1948), preamble. 110 Rawls (note 107), 7.

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rights law should apply extraterritorially.111 In particular, it has been suggested that human rights law should apply to extraterritorial state action in order to prevent three outcomes from occurring in consequence of the extraterritorial nature of the action: 1. a double standard of legality operating as between the territorial and extraterritorial locus;112 2. a disparity in human rights protection operating on grounds of nationality;113 3. a vacuum in rights protection being created through the act of preventing the existing sovereign from safeguarding rights.114 The point is not that these three outcomes are necessarily unjustified in all circumstances (though they might be), but, rather, that they should not subsist merely because of the extraterritorial locus in which the acts take place. It is this situation which is avoided through the application of human rights obligations to extraterritorial state actions. Arguments are also made on the other side, for example asking whether the application of human rights norms somehow prevents an occupying power from doing all it needs to given the special policy requirements in the occupation context. Does one of the key elements for permissible derogations in the main human rights treaties on civil and political rights mentioned earlier – that there is a war or public emergency threatening the life of the nation – only apply to domestic emergency situations, thereby preventing the state from being able to enter

111

See R. Wilde, Legal ‘Black Hole’?: Extraterritorial state action and international treaty law on civil and political rights, Michigan Journal of International Law 26 (2005), 790–797. 112 Lopez Burgos v. Uruguay, Communication No. R.12/52, Human Rights Committee, Supp. No. 40,176, UN doc. A/36/40 (1981), para. 12.3; Celiberti de Casariego v. Uruguay, Communication No. R.13/56, Human Rights Committee, Supp. No. 40,185, UN doc. A/36/ 40 (1981), para. 10.3; Issa and Others v. Turkey, Appl. No. 31821/96, European Court of Human Rights, Judgment of 16 November 2004, available at www.echr.coe.int, para. 71; Solomou v. Turkey, Appl. No. 36832/97, European Court of Human Rights, Judgment of 24 June 2008, para. 45. For commentary, see Wilde, Legal ‘Black Hole’? (note 111), 790–791. 113 See Coard (note 91), para. 37; Human Rights Committee, General Comment No. 31 on Art. 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN doc. CCPR/C/74/CRP.4/Rev.6 (2004), para. 10; for commentary, see Wilde, Legal ‘Black Hole’? (note 111), 791–792. 114 Cyprus v. Turkey, App. No. 25781/94, European Court of Human Rights (Grand Chamber), Reports 2001-IV, para. 78; see Wilde, Legal ‘Black Hole’? (note 111), 792–797.

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derogations in relation to its activities abroad, in turn preventing it from taking all the measures necessary in the occupation context?115 Another relevant issue of principle is the right of self-determination of those in the occupied/administered territory.116 It might be asked here whether it compatible with this right for the foreign state’s own human rights obligations to be, in a sense, imposed on the population of the occupied territory. Within this general question, it is necessary to consider whether a distinction should be made between universal standards and/or standards binding on both the occupied territory and the occupying state, on the one hand, and standards binding only on the latter entity and/or conceived with a particular, spatially-defined political community in mind, such as the European Convention on Human Rights (ECHR) and its Protocols, on the other hand.117 Moreover, would the requirement of the provision of remedies flowing from applicability of human rights law be impractical – would this lead to overstretch on the part of national and international judicial bodies concerned with human rights, and are national courts, given their remoteness from the theatre of operations, capable of handling cases concerning actions abroad?118 115

On derogations, see the sources cited in Wilde (note 84), 166–167, note 9. See the sources cited in Wilde (note 1), 154, note 3 and in the List of Sources, section 5.4. 117 The Preamble to the ECHR (note 94) states that “[t]he governments signatory hereto, being members of the Council of Europe, … [b]eing resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration …”; ECHR jurisprudence frequently references this “common heritage” when construing the meaning of treaty provisions. See, e.g., Golder v. United Kingdom, Appl. No. 4451/70, European Court of Human Rights, Series A, No. 18 (1975), para. 34; United Communist Party of Turkey and Others v. Turkey, Appl. No. 19392/92, European Court of Human Rights, Reports 1998-I, para. 45; for academic commentary, see, e.g., S. Greer, Constitutionalizing Adjudication under the European Convention on Human Rights, Oxford Journal of Legal Studies 23 (2003), 405. For one judicial consideration of whether applying the ECHR obligations of a contracting state to actions by that state in a foreign state not also bound by the ECHR would amount to “human rights imperialism,” see R (Al-Skeini) v. Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26; [2007] 3 WLR 33, para. 78 (Lord Rodger). For commentary, see R. Wilde, Complementing Occupation Law?: Selective Judicial Treatment of the Suitability of Human Rights Norms, forthcoming, Israel Law Review (2009); R. Wilde, Case Note, R (Al-Skeini) v. Secretary of State for Defence (The Redress Trust Intervening), AJIL 102 (2008), 628. 118 On the provision of remedies, see, e.g., ICCPR (note 94), Art. 2(3); ECHR (note 94), Art. 13; ACHR (note 94), Art. 25; cf. Convention against Torture (note 94), Arts. 13 and 14. The Convention on the Rights of the Child (note 94) contains no explicit requirement of provision of a domestic remedy for violation. 116

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It is of course difficult to approach these issues in the abstract, since much depends not on whether human rights law applies, but rather what it would require were it to apply, something which is in part mediated by the issue discussed earlier of the interplay between human rights law and other areas of law also applicable in the occupation context.

G. Trusteeship and Accountability David Scheffer’s argument about the inadequacies of occupation law is made by focusing on transformatory occupations: if the status quo policy associated with the Hague Regulations is not followed in certain occupations and, implicitly, if this is, in some cases, legitimate, then the regulatory regime needs to move on and accommodate a broader range of activities performed during occupations. In certain respects, this echoes colonial-era arguments about placing colonial administration under a structure of accountability. One benefit of acknowledging the connections between occupation and colonial trusteeship – between Hague 1899/ 1907 and Berlin in 1884–1885 – is in being able to draw on those related debates. Before doing so, it is necessary to review the provision of international accountability mechanisms in relation to some of the main forms of international trusteeship. In one sense, international territorial administration is a fully internationalized version of international trusteeship, in that the actor involved as trustee is an international organization rather than an individual state or groups of states. However, in another sense it marks a step away from internationalization, in that it is not subject to the same level of international scrutiny as was the case with the mandate and trusteeship arrangements and colonialism under the UN Charter. With the mandate arrangements, oversight of different kinds was provided by League of Nations Assembly, the Council, the Permanent Mandates Commission (to whom individuals in the mandates could bring petitions), the Mandates Section of the Secretariat, other League bodies and the possibility that issues relating to the mandates could be brought before the Permanent Court of International Justice.119 119 See generally the relevant sources cited supra, note 17 and, in particular, Hall (note 15), especially 32, 48–52, Part III, Annexes VII, VIII, IX and, on the ILO in particular, 249–255; J. C. Hales, The Creation and Application of the Mandate System (A Study in International Colonial Supervision), Transactions of the Grotius Society 25 (1939), 204– 263; Anghie, Imperialism (note 78), 151 et seq. (on the Permanent Mandates Commission in particular); N. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention, 2002, 265–273 (also on the Permanent Mandates Commission in particular).

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Oversight was exercised in relation to trust territories by the UN General Assembly and the Trusteeship Council and through the possibility that issues relating to trust territories could be brought before the International Court of Justice.120 Oversight was exercised in relation to non-self-governing territories through the reporting obligations under Art. 73(e) of the UN Charter.121 The UN Trusteeship Council was mothballed with the end of the final trust arrangement in 1994. However, it was and is open to further territories, and can include arrangements where the administering authority is the UN.122 Indeed, some commentators have proposed that the Trusteeship Council should be revived to provide oversight to ITA missions.123 East Timor fitted into the category of a trust territory when the UN mission began in 1999: it had been detached from what was in effect a colonial power; its people enjoyed a right of self-determination but were deemed incapable of self-administration in the short term.124 Despite this, the Trusteeship Council was not revived for the East Timor administration project. Indeed, there seems to be international consensus that the Council be abolished, as proposed by then Secretary-General Kofi Annan and endorsed by the General Assembly in 2005.125 Attention has shifted towards the new Peacebuilding Com120

See generally the relevant sources cited supra, note 17. UN Charter (note 14), Art. 73(e). See Hall (note 15), 285–290; U. Sud, United Nations and the Non-Self-Governing Territories, 1965; Y. El-Ayouty, The United Nations and Decolonization: The Role of Afro-Asia, 1971; M. Barbier, Le Comité de décolonisation des Nations Unies, 1974; S. H. Ahmad, The United Nations and the Colonies, 1974; Oppenheim’s International Law, 291–295, and sources cited therein; J. Crawford, The Creation of States in International Law, 2006, ch. 14, passim; U. Fastenrath, Art. 73, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 2002, vol. 2, 1091–1093. See also http://www.un.org/Depts/dpi/decolonization (covering both non-selfgoverning and trust territories). For a characteristically insightful cross-cutting analysis of the issue of legal responsibility, see W. M. Reisman, Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate, and Trusteeship Obligations, Michigan Journal of International Law 10 (1989), 231. 122 See UN Charter (note 14), Arts. 77 and 81. 123 E.g., M. Ruffert, The Administration of Kosovo and East Timor by the International Community, International and Comparative Law Quarterly 50 (2001), 613 (631); T. Parker, The Ultimate Intervention: Revitalising the UN Trusteeship Council for the 21st Century, 2003, 43–50. 124 On the legal status of East Timor during the period of UN administration, see the discussion in Wilde (note 1), ch. 5, section 5.7. 125 See In Larger Freedom, Towards Development, Security and Human Rights for All, Report of the Secretary-General, 21 March 2005, UN Doc. A/59/2005, Chapter V, Section B, paras. 165–166 and section F, para. 218; 2005 World Summit Outcome, GA Res. 60/1, 16 September 2005, para. 176. 121

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mission as a body that might become involved in such oversight, though the prospects here would not seem to be that significant.126 Not only have ITA trusteeships not been subjected to much international oversight; as mentioned at the start of this piece they have also been criticized on human rights grounds, for the lack of review mechanisms on the ground, and particular practices conducted, notably the use of security detentions in Kosovo.127 Underlying such commentary is the widely-held assumption that ITA should be made fully accountable. If the UN is acting as the government, then it should be subject to the same checks and balances as any other government. As previously mentioned, trust was seen as a means to reconceive colonial rule as humanitarian,128 in some cases to replace earlier forms of rule understood as having been exploitative.129 In the context of the belligerent occupations to which the Hague Regulations apply, the desire was to prevent abuses and exploitation

126

The creation of the Peacebuilding Commission was recommended by the General Assembly in 2005; see 2005 World Summit Outcome (note 125); on the establishment of the Commission, see SC Res. 1645 (2005), 20 December 2005; SC Res. 1646 (2005), 20 December 2005; GA Res. 60/180, 30 December 2005. On the Peacebuilding Commission see, in general, http://www.un.org/peace/peacebuilding/. 127 On criticism in relation to UNMIK, see the first three Annual Reports and the 10 special reports of the Ombudsperson Institution in Kosovo, all available at http://www. ombudspersonkosovo.org. For criticism from the UN Human Rights Committee, see Concluding Observations of the Human Rights Committee: Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1, 14 August 2006. For criticism by the Council of Europe, see Kosovo: The Human Rights Situation and the Fate of Persons Displaced from their Homes, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, CoE Doc. CommDH(2002)11, 16 October 2002; European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms (Opinion No. 280/2004, Strasbourg, 11 October 2004), available at http://www. venice.coe.int. In relation to the implementation of the Council of Europe Framework Convention on the Protection of National Minorities, see the First Opinion of the Advisory Committee on Kosovo, adopted on 25 November 2005, CoE doc. CM(2005)192, 14 December 2005. For NGO criticism, see, e.g., Amnesty International, Federal Republic of Yugoslavia (Kosovo): International officials flout international law, AI Index: EUR 70/008/2002, 1 September 2002, available at http://web.amnesty.org/library/index/engeur 700082002, and the documentation of the Vetevendosje movement, available at http:// www.vetevendosje.org. Many of the academic commentators listed in Wilde (note 1), List of Sources, section 5.2.7, are critical of UNMIK’s human rights record. See also supra, note 2 and corresponding text. 128 See supra, note 15. 129 See supra, note 16.

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commonly associated with the conduct of such occupations in the past.130 Trusteeship requires accountability because of the imbalance in the power relationship between the trustee and the ward, and the resulting possibilities for abuse. As Michael Reisman observes in his discussion of the law applicable to trusteeship arrangements, the requirement of accountability is rooted in the fact that “the power relationship between the parties concerned is manifestly asymmetrical.”131 In other words, it is not enough to humanize forms of foreign domination to ensure that they operate for the benefit of the local population; there must also be mechanisms to ensure these humanitarian standards are adhered to. Those who advocated reconceiving colonialism to operate on the basis of trust did so in part because this would provide a basis for subjecting colonial administration to third party review.132 So Edmund Burke regarded accountability to be “of the very essence of every trust.”133 Who, then, should international trusteeships be accountable to? In the context of ITA, Richard Caplan asks: Whose opinion should count …? International transitional authorities cannot function as governments answerable primarily to the people whose territories they administer. International trusteeships are not representative democracies …134

Even if the international administrators have not been elected by the people they govern, does this necessarily mean that they should not be answerable to them? Again in the context of ITA, Simon Chesterman argues that … final authority remains with the international presence and it is misleading to suggest otherwise. If the local population had the military and economic wherewithal to provide for their security and economic development then a transitional administration would not have been created. Where a transitional administration is created, its role is – or should be – precisely to undertake military, economic, and political tasks that are beyond existing capacities.135

The suggestion is that direct accountability to the people is at odds with the underlying enterprise in trusteeships: foreign actors have taken over control of governance precisely because of a judgment concerning the inability or unwillingness of the local population to perform this role themselves, either at all, or in a manner that conforms to certain policy objectives. To render the projects directly accountable to the local population in any meaningful way – i.e., in a way that meant policies were altered to take into account the views of the population – 130

See the sources cited supra, note 4. Reisman (note 121),233. 132 See the sources cited supra, note 4. 133 Burke (note 12), 411 (emphasis in original). 134 Caplan (note 66), 246, footnote omitted. 135 S. Chesterman, You, The People: The United Nations, Transitional Administrations, and State-Building, 2004, 143. 131

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would be to miss the point of the enterprise. In Bosnia and Herzegovina, for example, the High Representative has sometimes removed elected officials from office, inter alia because the policies espoused by the officials in question, such as what is deemed to be extremist nationalism, runs counter to the political agenda OHR has for Bosnia and Herzegovina.136 Necessarily this goes against the popular will insofar as it was meaningfully exercised in the vote that brought the official in question to office in the first place. Even on its own terms such an argument only goes so far, however. It only applies to policies concerned with remedying problems associated directly with the local population. For missions concerned with, for example, enabling the transfer of the territory from one political group to another, such as UNTAES transferring control from local Serbs to Croatia, there is nothing contradictory with the mission’s objective in making the policies it promotes during the period of administration accountable directly to the local population.137 The fact that a mission is intended to hand the territory over to another sovereign after an interim period does not by itself necessitate, for example, an ability to make decisions about the economy of the territory during that period without having to account to the local population in doing so. Even in ITA mandates responding to perceived problems with the way local actors carry out governance, the mandate itself should not be taken for more than it is. A mandate to foster economic development and reconstruction, for example, does not by itself presuppose that the economic model being implemented in the territory should not be determined by the local population. In East Timor, for example, development was needed because the East Timorese had been denied selfdetermination, not because the local population were incapable of making decisions on economic matters. Part of the answer to the accountability issue, then, concerns the scope of the mandate and what this means in terms of decision-making.138 Moreover, accountability issues run much wider than the particular policies being promoted: corruption, mismanagement and human rights abuses are not part of the mandate of the projects, and to exercise scrutiny over them is not to undermine the policy objectives of the missions. Effective accountability mechanisms concerning such matters are not incompatible with the idea of trusteeship itself; indeed, for those projects concerned with transforming the politics of the territory

136

On OHR, see supra, note 77. On UNTAES, see supra, note 50. 138 In both Kosovo and East Timor, the UN set up bodies to which certain prerogatives were devolved, but final authority on decision making always resided in the head of the UN mission, see the discussion in Wilde (note 1), ch. 1, notes 1 and 2. 137

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concerned along the lies of the rule of law and the promotion of human rights, a key component of “tutelage” is leading by example. As reflected in the quotation from the Human Rights Ombudsperson at the start of this piece, critics of the unaccountability of the ITA projects often express surprise at this situation via wry remarks about the irony of the UN seeking to promote democracy, human rights and the rule of law while acting in an manner that is undemocratic, violative of human rights, and above the law. As far as mechanisms to remedy this at the international level, they often call for the Trusteeship Council to be revived to supervise ITA missions.139 What such arguments perhaps fail to give due weight to, however, is the possibility that in the case of international organization-conducted trusteeship, this modern counterpart to the trusteeship of the Hague Regulations of 1899 and 1907 operates in a climate of unaccountability precisely because it is conducted by the UN; moreover, the lack of effective international scrutiny of all modern trusteeships can be understood, in part, somewhat paradoxically because the idea of trusteeship itself is of questionable international legitimacy. When the trusteeships of today are placed in the correct historical context, including the key moment of the Hague Regulations, their unaccountable nature is less of a surprise, and the non-revival and proposals to dismantle the UN Trusteeship Council make sense. In the case of UN-conducted trusteeships, one part of the explanation here is the normative portrayal of international organizations as humanitarian and acting in the interests of the international community as a whole, contrasted with the normative portrayal of states as always potentially imperial and self-serving. However simplistic and problematic such ideas may be, they are of purchase in explaining why the same normative push for international accountability in the context of colonial, i.e. state-conducted trusteeship, and occupation trusteeship, has not been evident in the case of ITA.140 More fundamentally, however, one has to take into account a further, key normative regime in international law and public policy that is often overlooked in discussions of trusteeship, and yet is potentially relevant to all forms of trusteeship.

139

See supra, note 123. On critiques of colonial trusteeship based on the normative character of states as colonial administrators, see the discussion in Wilde (note 1), ch. 8, section 8.7.1, and sources cited therein. On ideas of legitimacy relating to ITA rooted in the normative character of international organizations as territorial administrators, see ibid., ch. 8, section 8.7.2.3. Other ideas of legitimacy are discussed therein, ch. 8, section 8.7.2 and ch. 9, section 9.2.2. 140

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H. The Missing Issue and Area of International Law – Self-Determination Half way into the lifespan of the Hague Regulations of 1907, the profound shift in international policy and law that led to the self-determination entitlement repudiated the legitimacy of the idea of introducing and maintaining trusteeship.141 Administration by outside actors, necessarily preventing self-administration, was considered ipso facto objectionable.142 The Hague model of mitigating existing occupation through trusteeship continued, but, crucially, there was now a clear obligation to bring such occupations, alongside other situations of foreign domination, to a quick end and, indeed, not to engage in them in the first place. In the particular case of foreign administration operating on a trust basis, freedom and independence was no longer to be granted if and when the stage of development had reached a certain level as in the past; it was an automatic entitlement. Under 141 On self-determination, see the sources cited supra, note 116. The academic commentary is voluminous. See, e.g., the following: W. Ofuatey-Kodjoe, The Principle of SelfDetermination in International Law, 1977; H. Hannum, Autonomy, Sovereignty, and SelfDetermination: The Accommodation of Conflicting Rights, 1990; J. Crawford (ed.), The Rights of Peoples, 1992; A. Cassese, Self-Determination of Peoples: A Legal Reappraisal; 1995; K. Knop, Diversity and Self-Determination in International Law, 2002; J. Crawford, The Creation of States in International Law; 2nd ed. 2006, 108–128; A. Cassese, The SelfDetermination of Peoples, in. L. Henkin (ed.), The International Bill of Human Rights: The Covenant on Civil and Political Rights, 1981, 92; C. Tomuschat (ed.), Modern Law of SelfDetermination, 1993; Drew (note 76); A. Bayefsky (ed.), Self-determination in International Law: Quebec and Lessons Learned, 2000; Wilde (note 1), ch. 2, section 5.2. 142 On this absolutist rejection of foreign territorial administration, see the discussion in Wilde (note 1), ch. 8, section 8.5.1 and p. 385–386. In the words of Robert Jackson “… for several centuries prior to the middle of the twentieth century, an activist doctrine of military intervention and foreign rule was a norm that was imposed by the West on most of the world. By 1960 that old doctrine had been completely repudiated by international society. That was not because trusteeship could not produce peace, order, and good governance in some places. It was because it was generally held to be wrong for people from some countries to appoint themselves and install themselves as rulers for people in other countries … Self-government was seen to be morally superior to foreign government, even if self-government was less effective and less civil and foreign government was more benevolent. Political laissez-faire was adopted as the universal norm of international society,” R. H. Jackson, The Global Covenant: Human Conduct in a World of States, 2000, 314. In the words of William Bain, “the idea of trusteeship … was relegated to the dustbin of history along with the legitimacy of empire” because of a “normative shift whereby independence became an unqualified right and colonialism an absolute wrong,” Bain (note 15), 4 and 134 respectively.

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Article 3 of General Assembly Resolution 1514 of 1960, “[i]nadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.”143 As Robert Jackson states: “Independence was a matter of political choice and not empirical condition.”144 In the words of William Bain … decolonization abolished the distinction upon which the idea of trusteeship depended. There were no more ‘child-like’ peoples that required guidance in becoming ‘adult’ peoples: everyone was entitled by right to the independence that came with adulthood. Thus it no longer made any sense to speak of a hierarchical world order in which a measure of development or a test of fitness determined membership in the society of states.145

Concerns by western states about “underdevelopment” in the global south, and activities by them to try and “improve” this situation shifted into the arena of what is now called “aid” or “development assistance.”146 Given this normative position, it can be speculated that, although, in fact, trusteeship continued, this was only deemed acceptable in a few places; more generally, there is considerable international resistance to it as a general idea, particularly, obviously, amongst G77 states.147 To revive the Trusteeship Council would be to accept that the self-determination paradigm has somehow become qualified – that trusteeship is back as a legitimate feature of international public policy. Formalizing an accountability mechanism would inevitably represent the formalizing and legitimizing of the trusteeship paradigm itself. If there is no general acknowledgment that trusteeship is back as a legitimate feature of international public policy, then it becomes more difficult to make the case for greater international accountability. The denial of accountability, then, is in one sense structurally tied to the self-determination entitlement. 143

GA Res. 1514 (XV), 14 December 1960, para. 3. See R. H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World, 1990, 95. Of course, which particular associations of people could claim or, put differently, which territorial units would form the basis for independence was in part a matter of the “empirical condition.” 145 Bain (note 15), 135. 146 For an example of commentary on this link between contemporary notions of development assistance and the activities of colonial trusteeship, see, e.g., ibid., 7. 147 See further International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), available at http://www.iciss.ca/pdf/Commission-Report. pdf, 43, para. 5.2.4; Ruffert (note 123), 631; Chesterman (note 135), 33; S. Chesterman, Virtual Trusteeship, in: D. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century, 2004, 219, 222; S. Chesterman, Occupation as Liberation: International Humanitarian Law and Regime Change, Ethics and International Affairs 18:3 (2004), 51 (58). 144

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The self determination entitlement is crucial not only in terms of the legitimacy of the existence of trusteeship; it is also fundamental to the legitimacy of what is done during trusteeships, including occupations. As previously discussed, the Hague model of preserving the status quo is seen as passé by commentators such as David Scheffer because it is seen as placing an impediment to profound political and economic transformation. So, to borrow Scheffer’s word, it is necessary to move “beyond” this paradigm. Such an argument must, however, take account of the fact that international law did move “beyond” merely humanizing the conduct of foreign domination as was attempted at the Hague, more radically to repudiate the legitimacy of this domination itself. David Scheffer includes human rights law as one of the normative regimes he sees as potentially helpful as a regulatory regime for transformatory occupations, but one right in particular – self-determination – is arguably a serious impediment to such transformations. The practice in some occupations of altering existing law to ensure it does not violate universallyaccepted human rights may not be a problem here, but of course transformation goes far beyond this, for example profoundly reorienting the economies of the territories affected, without this being agreed to by the local population. The Hague model, then, may actually be more consonant with contemporary international norms than is generally acknowledged. Although its modest ambition of reining in occupation does not go as far as modern self-determination in providing a clear basis for ending foreign control, this notion remains a powerful concept in those situations where administration by foreign actors has been allowed to happen, and where choices are being made about the extent to which foreign actors are going to determine the economic and political system under which the local population will live.

The Law on the Unilateral Termination of Occupation By Eyal Benvenisti

A. Introduction: The Ways of Ending Occupations In principle there can be four ways for an occupation to end.1 First, occupation can end by the loss of effective control. Second, it can end by the dissolution of the ousted sovereign, as has been recognized under the doctrine of debellatio, although this doctrine is now widely considered incongruent with the principle of self-determination of peoples and therefore widely accepted as desuetudo.2 Third, occupation could come to an end by the signing of a peace agreement or an armistice agreement with the ousted government. Fourth and finally, occupation can end by transferring authority to an indigenous government endorsed by the occupied population through referendum and by international recognition.3 This brief note discusses the first type of termination. It seeks to characterize the moment of loss of control and examines the obligations the occupant has during (and possibly after) the termination process.

1

For different types of terminations see Adam Roberts, What Is A Military Occupation? British Yearbook of International Law 1984 (1985), 249, 257–260. 2 See Eyal Benvenisti, The International Law of Occupation, 1993, 94–96 (critique of the doctrine). Significantly, the doctrine was not invoked by the occupants of Iraq in 2003: Eyal Benvenisti, Water Conflicts during the Occupation of Iraq, American Journal of International Law (AJIL) 97 (2003), 860. 3 This type of ending seems to be gaining recognition in recent years. In principle, the acceptance of such an ending runs the risk of providing an incentive for occupants to circumvent the goals of the occupation regime that call for strict adherence to the status quo ante bellum. This concern is reflected in Article 47 of Geneva Convention IV which stipulates that the protection of the convention will remain in force regardless of any changes introduced, as the result of the occupation of a territory, into the institutions or government of the said territory. But at the same time, changes endorsed by the entire population of a given country through a free and fair referendum, such as the ones affected in Iraq in 2005, are expected to be regarded as valid, Benvenisti (note 2), 173, 215.

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B. When Occupation Ends? When is the withdrawal of an occupant from territory it held considered termination of occupation? This section suggests that it is necessary to make a rather careful factual determination in order to answer this question, because there is a fine line that distinguishing between the rearrangement of occupying forces, which does not bring occupation to an end, and the withdrawal of forces, whether voluntary or involuntary, whereby the occupant loses its ability to control the area and thereby terminates the occupation. To understand when occupation ends one must consider the factual conditions that give rise to an occupation. The legal conditions for the commencement of occupation are determined by Article 42 of the Hague Regulations of 1907, considered to reflect customary international law.4 Although seemingly straightforward, the conditions for occupation it sets forth have been the subject of controversy. There is no doubt that the test calls for factual analysis and determination of two conditions. There is no dispute about the first condition: as a result of the hostilities, the ousted government is incapable of publicly exercising its authority in that area. The second condition is the subject of dispute. The dispute relates to the question whether, in addition to the incapacity of the ousted government, the foreign army must actually substitute its own authority for that of the ousted government (so that its authority “has been established”) – “actual control” – or whether it is sufficient that the foreign army actually controls the area and is therefore in a position to substitute its own authority for that of the former government (so that its authority “can be exercised”) – “potential control.” If actual control were required, an army that controls an area but refrains from actually exercising that control vis-à-vis the civilian population would not be considered an occupant and would thereby be absolved from assuming responsibilities toward the local population. Similarly, if actual substitution were required, an occupant who decides to terminate its direct relations with the local population could claim that it was no longer an occupant. The negotiators and drafters of the Hague Regulations were preoccupied with an altogether different question and therefore did not debate this fine distinction. They were concerned with the opposite situation, namely the possibility of a premature declaration of occupation by an invading army. The premise at the time had been that occupants would seek to establish an occupation regime, even if prematurely. However, this matter did not escape the attention of contemporary

4 The text reads: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

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scholars who opted for the second reading.5 In subsequent years, as occupation became a liability more than an asset, occupying forces have tended to evade their responsibilities as occupants. One simple way to avoid responsibility was to refrain from actually establishing their authority vis-à-vis the local population in a foreign area under their control.6 In the case concerning Armed Activities on the Territory of the Congo7 the International Court of Justice opted for the requirement of actual control, requiring proof that the foreign army has actually substituted its own authority for that of the ousted government. The Court gave no reasoning for this rendition of the law, as if this were self-evident.8 But this matter is all but self-evident. Military manuals do not provide a consistent position on this question.9 Scholarly opinion from the 5 The Oxford Manual on Land Warfare adopted in 1880 by the Institut de droit international stated in Art. 41: “Territory is regarded as occupied when, as the consequence of invasion by hostile forces, the State to which it belongs has ceased, in fact, to exercise its ordinary authority therein, and the invading State is alone in a position to maintain order there” (emphasis by the author). Institut de droit international, Session d’Oxford, (1880) Manuel des lois de la guerre sur terre (Rapporteur: M. Gustave Moynier), available at http:// www.idi-iil.org/idiF/resolutionsF/1880_oxf_02_fr.pdf. The Oxford manual was a learned effort to develop the principles of the 1874 Brussels Declaration. Art. 41 echoed Art. 1 of the Brussels Declaration, who would ultimately become Art. 42 of the Hague Regulations. 6 For this reason I called for recognizing a duty to establish authority when such is possible: “The duty of the occupant to establish a system of direct administration in the occupied territory was self-evident to the framers of the Hague Regulations. Nowadays, faced with occupants’ reluctance to abide by this rule, the point requires emphasis. The establishment of such administration is a decisive indication of the occupant’s intentions regarding the treatment of the population under its rule and the final disposition of the territory,” Benvenisti (note 2), 212. 7 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, 168, 230, paras. 173, 177. 8 Id., para. 173: “In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government” (emphases by the author). 9 The US Military Manual (Field Manual 27-10, The Law of Land Warfare 1956) insists that “the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded” (para. 355) and that “the force in possession must have taken measures to establish its authority” (para. 356). The German Military Manual (Humanitarian Law in Armed Conflict – Manual, 1992) states that “the occupying

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days of the 1880 Oxford Manual onwards supports the test of potential control.10 The test of potential control was endorsed by a trial chamber of the ICTY in the case of Naletiliü,11 as well as by Judge Kooijmans in his separate opinion in Armed Activities of the Territory of the Congo.12 It was also approved by the Israeli Court of Justice in 1982 when it required the Israeli Army to comply with the law of occupation in South Lebanon.13 Most recently the Israeli Court followed the same test following the 2005 disengagement when it determined that “the State of Israel had no permanent physical presence in the [Gaza] Strip, and it even has no real potential to fulfill the obligations [of the occupant] … no real potential for effective control in what transpires in the Gaza Strip.”14 Under the test of actual control, occupation ends when the occupant no longer exercises its authority in the occupied territory. Under the test of potential control, occupation ends when the occupant is no longer capable of exercising its authority. Note, however, that even if occupation has ended (in either of those readings) and the occupant is relieved from its obligations under the Hague Regulations, it may still be bound by certain obligations under the Geneva Convention IV of 1949. Geneva Convention IV enumerates several obligations – indeed quite substantial positive obligations15 – applicable toward individuals who “find themselves in the hands power must be able to actually exercise its authority” (first emphasis by the author). The 2004 British Manual appears to contain a contradiction. On the one hand it stipulates that “the occupying power [must be] in a position to substitute its own authority for that of the former government” (para. 11.3, emphasis), but later it indicates that occupation “depends on whether authority is actually being exercised over the civilian population” (para. 13.3.2, my emphasis). See UK Ministry of Defence, The Manual of the Law of Armed Conflict, Cambridge University Press, 2004. 10 Eyal Benvenisti, Responsibility for the Protection of Human Rights under the Interim Israeli-Palestinian Agreements, Israel Law Review 28, 1995, 297, 309. 11 Case no. IT-98-34-T, Prosecutor v. Naletiliü, 31 March 2003. 12 Seperate Opinion of Judge Kooijmans, Armed Activities (note 7), 306, 316, paras. 36 et seq. 13 Tsemel v. The Minister of Defence, 37(3) PD 365 (1983); Benvenisti (note 2), at 181– 182. 14 Anonymous v. The State of Israel (not yet published, judgment of 11 June 2008) at para. 11. On the question whether Gaza is still occupied after the disengagement see Mustafa Mari, The Israeli Disengagement from the Gaza Strip: An End of the Occupation? Yearbook of International Humanitarian Law 8 (2005), 359 (yes); Yuval Shany, Faraway So Close: The Legal Status of Gaza after Israel’s Disengagement, Yearbook of International Humanitarian Law 8 (2005), 359 (no). 15 Note, for example, Art. 55 that goes way beyond the obligations under the Hague Regulations and requires the power in whose hands protected persons are found “to the fullest extent of the means available to it, [to] ensur[e] the food and medical supplies of the

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of a foreign army” also in occupied territories, but does not have its own definition of occupation, or of the circumstances where people “find themselves” in the occupant’s hands. In principle, one could have argued that those provisions of Geneva Convention IV related to occupied territory had no independent existence and were complementary to the occupation regime established by the Hague Regulations and thus become applicable only in situations defined by Article 42 of the Hague Regulations.16 But such an interpretation would have meant, for example, that a foreign army that had not established its own authority over the civilian population was not precluded, for example, from deporting them or from transferring parts of its own civilian population into the territory. This outcome clearly runs contrary to the object and purpose of the Geneva Convention IV to safeguard protected persons. Hence, at least with respect to obligations under Geneva Convention IV, the determination of the existence of occupation must not be dependent on actual authority being exercised by the foreign army.17 This conclusion is apparently endorsed indirectly by the ICJ in Armed Activities on the Territory of the Congo which states that a foreign army that has not established its authority nevertheless bears, at all times, the responsibility for all actions and omissions of its own military forces (as opposed to those of third parties) in the enemy territory in breach of its obligations under international humanitarian law which are relevant and applicable in the specific situation.18 The same paragraph adds that the foreign army, even if it is not formally an occupant, could still be responsible for violations by its troops of relevant and applicable rules of international human rights law. Since the conditions for the applicability of either the Hague or the Geneva obligations depend on questions of fact, the determination whether such control exists or not at the relevant times and in the relevant place will be based on a case by case analysis.19 The declarations by the occupant on the establishment or dismantling of administration are legally irrelevant. Fulfillment (or lack thereof) of the two conditions for occupation (whatever the second condition is) does not depend on whether occupation forces are present in all places at all times. It is generally accepted that forces are considered “present” when the occupying force can, within a reasonable time, send detachments of troops to make its authority felt population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” 16 According to Art. 154 of the Convention, the provisions of the Hague Regulations are supplementary. 17 The potential control requirement seems an appropriate test for imposing certain Convention obligations that are related to the administration of the occupied area in the post-hostilities stage. 18 Armed Activities (note 17) 231, para. 180. 19 Naletiliü (note 11), para. 218.

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within the occupied area. The number of troops necessary to maintain effective occupation depends on various factors such as the disposition of the inhabitants, the number and spread of the population, and the nature of the terrain. Battle areas may not be considered as occupied, but sporadic local resistance, even successful at times, will not render the occupation ineffective. But obviously, if the sending of troops requires them to engage in battle to recapture an area from the enemy, the area will no longer be considered occupied until the troops actually manage to establish their control over it.

C. The Occupant’s Forward-Looking Obligations The law on occupation is designed to apply while occupation lasts. This makes eminent sense when one envisions the typical 19th century short-term occupation and also the more recent experiences: The law wishes to delimit the power of the occupant and to safeguard the interests and rights of the sovereign people and its government. So far the doctrine has not dealt with the question of the obligation of the occupant in the period leading up to and during the period of the unilateral termination of the occupation. This is mainly due to the fact that most occupations ended either by force or by agreement to which the law deferred.20 In recent years, however, occupations have often become more a liability than an asset. Consequently, occupants, although not driven out by force, have unilaterally decided to withdraw their forces and terminate their effective control, leaving the local population to face up to the challenge of reestablishing public order. Situations like Israel’s termination of the occupation of Southern Lebanon in 2000 or the socalled “disengagement” from the Gaza Strip in 2005 therefore raise new questions with regard to the transition into the post-occupation era. The first question involves the present-tense obligations of the occupant: Do they also entail the taking into account of the needs of the population in the post-occupation era? The second question relates to the voluntary decision of an occupant to withdraw from a territory it controls. To what extent must it take into account the needs of the occupied population and ensure them during and immediately following the withdrawal?

I. Forward-Looking Obligations of the Occupant During the Occupation My argument here is that the present-tense obligations of the occupant toward the occupied population should also be interpreted as to entail obligations to ensure, as much as the occupant possibly can, the continuation of “public order and 20

Roberts (note 1).

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civil life” during, and immediately after, the termination of the occupation and the transition to indigenous rule.21 The scope of this obligation deepens and widens in direct relation to the length of the occupation. This obligation is more pronounced in occupations where the occupant becomes actively involved in managing daily life and controls the institutions which run the local public institutions the local population relies on. As dependency on the occupant widens and deepens, the responsibility of the occupant to ensure smooth transition to indigenous control also grows. This is especially the case in the so-called humanitarian occupations,22 or transformative occupations,23 prompted by the urge to protect the local population from internal persecution. These considerations imply that the occupant must already take into account the post-occupation period during the occupation and make the necessary provisions in anticipation of the termination of its control.

II. Obligations of the Occupant at the Moment of Ending the Occupation It is possible, and it is indeed morally necessary, to argue that the unilateral decision to terminate an occupation is not free of legal constraints. Obviously, occupants may often be driven out by force and under conditions that do not leave them the time or resources to consider the well-being of the local population they leave behind in their retreat. But when their withdrawal is a matter of choice, where circumstances permit a process of deliberation over a variety of options, the interests of the local population seem to merit attention. This does not mean that occupation should not be terminated, nor should this become a pretext for prolonging the occupation. What it means is that the plans for the termination should include ensuring public order in civil life for the duration of the termination process and in its immediate aftermath. At times this attention would be minimal – some food, water and medical supplies – for the duration until the incoming power establishes control. When the withdrawal is planned and executed in an orderly manner, it should include the orderly transfer of control over public buildings and installations, police

21 The Hague Regulations of 1907, Art. 43: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety (l’ordre et la vie publics), while respecting, unless absolutely prevented, the laws in force in the country.” 22 For a comprehensive treatment of this type of occupations see Gregory H. Fox, Humanitarian Occupation, 2008; see also Benvenisti (note 2), 166–167. 23 Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, AJIL 100 (2006), 580, (referring to occupation “whose stated purpose (whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule”).

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headquarters and prisons,24 as well as private buildings, such as banks and shopping centers that could become targets of looting, to responsible representatives of the local population, if such can be found. And if circumstances require and time and resources allow, the occupant may be called upon to build the capacity of the indigenous community before it retreats. The obligation to “ensure, as far as possible, public order and safety” persists until the very end of the occupation.

III. Obligations of State Parties under Human Rights Law Similar questions arise with respect to obligations under human rights treaties because they too impose obligations on parties to such treaties that exercise effective control over territory during and after international armed conflicts.25 The state party occupying a foreign land and considering withdrawal from it may have certain responsibilities toward the population it contemplates leaving behind, as the successor power may not be bound by the same human rights obligations or may not be able – or even willing – to ensure them. The era of state succession and breakup during the 1990s brought the need to clarify questions related to the applicability of human rights and humanitarian obligation at times of transition to public attention. It was convincingly argued that “[g]reat social upheavals and even peaceful break-ups of States are painful events; in such times it becomes especially urgent for the international community to monitor closely human rights situations in the countries concerned”26 and that “the extension of human rights/humanitarian treaties is of special pertinence at times of social upheavals surrounding political transition (even the most peaceful ones).”27 But the literature focused mainly on the obligations of the incoming regime, most often the newly established successor state. The issue was therefore framed as an issue of state succession, more specifically focusing on the question of “automatic 24 Geneva Convention IV specifically mentions the obligation to hand over protected persons who have been accused of offences or convicted by the Courts in occupied territory together with the relevant records (Art. 77). 25 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136; Armed Activities (note 7). For a critical appraisal see Aeyal M. Gross, Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation? European Journal of International Law (EJIL) 18 (2007), 1. 26 Rein Mullerson, Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia, International and Comparative Law Quarterly (ICLQ) 42 (1993), 473, 492. 27 Rhoda Mushkat, Hong Kong and Succession of Treaties, ICLQ 46 (1997,) 181, 191.

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succession” to human rights treaties. Under this highly contentious, however strongly desired assertion, successor states would be bound by human rights treaties to which the former state had been bound.28 The question of the former state’s responsibility was little discussed. But the matter was raised in at least one case, not formally a case of succession. The occasion was the transfer of authority over Hong Kong from the United Kingdom (who was a party to the International Covenant on Civil and Political Rights) to China (who was not). The Human Rights Committee concluded that before and in preparation of the transfer of authority, the transferring state must “take all necessary steps to ensure effective and continued application of the provisions of the Covenant.”29 In principle, a similar statement may also be appropriate in the context of preparations for the transfer of authority from the occupant to local elements. Obviously, the duty to take “all necessary steps” depends on the circumstances of the situation and the resources of the departing power. They cannot amount to obligations of result, nor will the departing power be responsible for acts or omissions of the new administration. But at such a time of social upheaval surrounding the political transition, it must do its utmost to alleviate the human condition it leaves behind.30 The withdrawing power may also have a specific obligation in situations where there are substantial grounds for believing that particular individuals or groups are under a real risk of irreparable harm as a consequence of falling into the hands of the incoming power. A well-established principle of human rights law requires parties not to remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as by torture, in the country to which removal is to be effected or in any country to which the person may subsequently be removed. A higher level of abstraction stipulates that parties may not hand over persons to the incoming authority by leaving such 28

On this doctrine see Akbar Rasulov, Revisiting State Succession to Humanitarian Treaties: Is There as Case for Automaticity? EJIL 14 (2003), 141; Mushkat (note 27), 190– 191. Judge Weeramantry’s separate opinion in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, available at http://www.icj-cij.org/docket/files/91/ 7361.pdf, upheld that doctrine, stating that human rights and humanitarian treaties can be regarded as an exception to the general “clean slate” approach in state succession because inter alia they “involve no loss of sovereignty or autonomy of the new State, but are merely in line with general principles of protection that flow from the inherent dignity of every human being which is the very foundation of the United Nations Charter” (645). 29 Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland (Hong Kong), 8 November 1996, CCPR/C/79/Add.69. 30 Yuval Shany, Law Applicable to Non-Occupied Gaza (draft 2008).

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persons behind.31 Such persons will definitely include individuals who acted as collaborators or informers to the occupying army and where there is reason to believe that the incoming power would subject them to torture. Arguably the same case can be made for people expected to be persecuted by the incoming power, such as gays and lesbians, political dissidents or members of ethnic minorities.32 When Israel unilaterally withdrew from South Lebanon in 2000 it also opened its borders to the fleeing members of the Israeli-backed militia called the South Lebanon Army. When it withdrew from Gaza in 2005 its Gazan collaborators were resettled within Israel.

D. Consequences of Failure to Comply The obligations at the voluntary termination of occupation are obviously not obligations of result but rather of conduct. They require due diligence. The adequacy of their realization depends on the specific circumstances, including the nature and the duration of the occupation, the resources available to the retreating occupant and to the incoming power, the needs of the local population and the circumstances of the withdrawal. Ultimately, as is the case with other decisions the occupant must take, the occupant needs to balance the interests of the population against its own military interests. The failure to undertake the necessary steps in anticipation of the transition could raise, in the aftermath of the occupation, the responsibility to correct its previous violations under the general principles of the law on state responsibility. The application of these general principles to the specific situation of occupation should take into consideration all the relevant circumstances. Thus, for example, the remedy of restitution, namely the obligation to “re-establish the situation which existed before the wrongful act was committed,”33 should be contemplated only in the most extreme and clear cases of “humanitarian occupations.” The remedy of compensation would often be meaningless where the population lacks basic infrastructure and public institutions. The more relevant type of satisfaction that the previous occupant would be legally expected to make would most often relate to the same services it provided or had to provide or ensure provision. These would entail at least the supply of resources required for basic subsistence. In addition, as part of the satisfaction, the previous occupant would be required to pro31

For the use of the same rationale in an even wider sense see Shany (note 30), 9. Those are likely to qualify also as refugees under the 1951 Geneva Convention relating to the Status of Refugees (Article 35 on the prohibition of refoulement). 33 Art. 35 of the 2001 International Law Commission’s Articles on State Responsibility. 32

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vide access to or through its own territory for crucial services that are not available in the previously occupied area. Obviously, these remedial obligations are, by nature, temporary. The incoming power must assume responsibilities as part of its assumption of sovereign authority. Gradually the burden to provide for the occupied population will shift to the incumbent authority.

E. Conclusion Responding to a petition against the reduction of the supply of fuel and electricity to the Gaza Strip, the Israeli Court of Justice recognized a general obligation owed by Israel to the population in the Gaza Strip after the disengagement. The judgment corresponds to the analysis provided in this note.34 The Court determined that “since September 2005, Israel no longer has effective control over the events in the Gaza strip.” It is not clear which test the Court used to determine effective control. On the one hand it states that “Israeli soldiers are not in the area on a permanent basis, nor are they managing affairs there” (which would correspond to the test of actual control), but the Court added later that Israel does not have “effective capability, in its present status, to enforce order and manage civilian life in the Gaza Strip” (which would correspond to the test of potential control).35 But the Court does not need to choose between the different tests since even the latter test, the less demanding one, was not found to be satisfied. This determination leads to the conclusion, that “the State of Israel does not have a general duty to look after the welfare of the residents of the strip or to maintain public order within the Gaza Strip pursuant to the entirety of the Law of Belligerent Occupation in International Law.”36 The Court then addressed the question of “duties of the State of Israel relating to the residents of the Gaza Strip.” In addition to duties “derived from the situation of armed conflict that exists between it and the Hamas organization controlling the Gaza Strip [and] from the extent of the State of Israel’s control over the border crossings between it and the Gaza Strip,” the Court recognized a duty stemming 34

All the quotes are taken from para. 12 of the judgment in HCJ 9132/07 Jaber al Bassiouni Ahmed v. The Prime Minister, 30 January 2008 (official translation). 35 See supra text accompanying notes 4–13. The Court also mentions the fact that “the military government that had applied to that area was annulled in a government decision,” as if this fact was pertinent. 36 In a subsequent judgment, Anonymous v. The State of Israel (note 14), the Court more clearly adopts the test of potential control.

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“from the relations which has been created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the area, as a result of which the Gaza Strip has now become almost completely dependent upon supply of electricity by Israel.” The Court cites no authority to support this assertion. It is submitted that this welcome assertion can be based on the principles of the law of occupation, and also, presumably, on human rights law. In our collective memory, the termination of occupation is associated with the joy of liberation.37 We tend to view this period as one of enormous excitement, of self- and collective fulfillment. But there may be different scenarios, especially in times when occupants experience the severe costs associated with their position. Unilateral withdrawals can be events as painful as other situations of political transition, in which the protection of individual rights is particularly important. Probably given the rather idyllic connotation, the law of occupation has so far failed to seriously address the occupant’s obligations in anticipation of and during the transitional period at the end of the occupation. It is time to fill this gap.

37 The occupiers of Iraq in 2003 tried to take advantage of this connotation by presenting the occupation as “liberation,” see Roberts (note 22).

A Return to Trusteeship? A Comment on International Territorial Administration By Gregory H. Fox

A. Introduction I have been asked to address the question of whether the international community has entered into new arrangements that represent “a return to trusteeship.” “Trusteeship” is defined in traditional sources as the external administration of a territory,1 but such a bare bones understanding is unhelpful in answering such a complex question. The question might be taken to refer to the four cases of international territorial administration in the 1990s: Bosnia (1995), Eastern Slavonia (1996), Kosovo (1999) and East Timor (1999).2 In each instance the international community assumed the role of a national government over the territory and exercised the sort of day-to-day authority usually reserved for domestic political institutions. This included passing new laws, drafting new constitutions, engaging in law-enforcement and even entering into international agreements on a territory’s behalf. But a “return” to trusteeship also might refer to so-called international governance missions, also known as post-conflict reconstruction missions. Here the international community (mostly via the United Nations) has not asserted formal control over territory. But in myriad countries from Cambodia to Liberia to El Salvador to Tajikistan it has immersed itself in a series of liberal democratic reforms – the most prominent being the organization of elections – that implicate the same functions of domestic authority as the territorial administrations. While both sets of modern missions share a focus on governance questions, in this brief discussion I will consider only whether the international administrations represent a return to an earlier era of trusteeship. I do so primarily because the international administrations acquired principal legal authority to govern the territories and thus enjoyed substantially more latitude than the governance missions to 1

See Blacks Law Dictionary, 8th ed. 2004, defining trusteeship as “Administration or supervision of a territory by one or more countries, esp. under a UN trusteeship council.” 2 See generally, Richard Caplan, The International Administration of War-Torn Territories, 2005.

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reform local institutions. If there exists a “model” of national governance that represents the collective interests of the international community, it is more likely to appear in these missions. And such a model would be the clearest basis for a claim that the idea of trusteeship – a sense of outsiders knowing what is best for a territory – has in fact returned. An initial problem in comparing the two eras is the precarious state of the contemporary “trusteeship” missions. No new territorial administrations have been launched since 1999. Two (East Timor and Eastern Slavonia) have been terminated and the others may soon end as well. The point is not simply that one cannot speak of a “return” to trusteeship when, within a few years, there may be little to return from. There is also the problem that the very idea of trusteeship implies an ongoing concern with peoples in certain states or territories. By contrast, an abrupt end to territorial administrations after only four years of new missions (Bosnia 1995 to Kosovo/East Timor 1999) would suggest the international community has moved on to other priorities. One could argue that the international administrations represented less the full resurrection of an intellectual paradigm than a failed experiment at trusteeship or something else. Each of the new missions was expensive and politically controversial. The list of practical obstacles they encountered is substantial: for example, the societies have functioned only episodically according to the liberal democratic models around which they have been reconstructed and guaranteeing the autonomy of one sub-state region (Kosovo) has facilitated its secession. Moreover, each of the 1990s missions was sent to a small territory that did not hold major strategic significance for dominant regional or global powers. When similar situations have arisen in much larger states with the potential for more deadly violence – Sudan and the Democratic Republic of Congo most prominently – no governance missions have been dispatched. Each of these factors is a cause for pessimism about the possibility of such missions arising again in the near future. If this is the case, one wonders whether in ten or fifteen years scholars will find intellectual coherence in the governance missions such that they might represent the return of a coherent policy of trusteeship or whether they will be seen as simply a series of politically motivated actions limited in time, place and duration. But let us assume a revival of some kind has taken place. What would the missions of the 1990s return to if they in fact exhibit characteristics of trusteeship? Formally, the answer appears to be the arrangements under the mandate system of the League of Nations and the trusteeship system of the United Nations. But the claim has a broader dimension, going beyond the particulars design of these two systems. The very idea of trusteeship, as Ralph Wilde has skillfully shown, predates both organizations. Its grounding in the late 19th Century colonial experience provided much of the intellectual pedigree for their later elaboration. So the

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question could also be phrased as whether the recent governance missions share the sense of reform-minded paternalism that provided much of the intellectual ballast for the earlier initiatives. In my view the questions cannot be so easily separated. They are obviously distinct in the most literal sense, the first focusing on the doctrinal and institutional architecture of the two regimes and the second focusing on the justifications offered by their proponents. And these distinctions carry forward in the quite obvious answers to the questions: “no” to the first (the two regimes were structured entirely differently) and “yes” to the second (their justifications, stated broadly, share a belief in the interveners’ superior ability to govern the target states). But can one plausibly answer “no” to the first question and “yes” to the second? Can one really say that regimes sharing virtually no common origins, structures, means of implementation or normative goals nonetheless share a common justification? I would like to argue that distinguishing questions of structure from those of implementation is artificial. One should not take at face value justifications that are not borne out in the nature of the regimes created. Similarly, one should not assume that regimes broadly described as addressing “governance” in the territories arise from common concerns. These assumptions are made possible by a failure to look carefully at the two regimes, as several of their characteristics suggest. First, the severely limited scope of the mandate and trusteeship arrangements should have important implications for the “paternalist oversight” one might ascribe to their architects. The mandate and trusteeship arrangements were limited to the colonies of the states defeated in the First and Second World Wars. This not only tainted the arrangements with the brush of war spoilage but severely limited their scope. The mandate territories, for example, comprised only 14 of the 118 overseas dependencies of the inter-war period.3 Second, neither the mandates nor trust territories involved international actors in matters of governance, though the UN Charter held out the possibility (never used) of direct UN governance.4 The mandatory and trustee powers exercised complete control over the territories with virtually no tangible input from the League or the UN. All major decisions related to governance – crucially, those concerning the degree of political participation permitted to the territories’ residents – were taken in national capitals. As a result, despite strong rhetorical commitments to securing the rights and well-being of the residents, the League and the UN did little to achieve those goals.5 One cannot speak of a “renewed” international paternalism on the nature of political life in the target states. The idea was simply absent from 3 4 5

H. Duncan Hall, Mandates, Dependencies and Trusteeships, 1948, 44. Art. 81 UN Charter. Gregory H. Fox, Humanitarian Occupation, 2008, 26–28, 36–39.

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the regimes’ design. It is very difficult to find examples in practice where either organization responded to reports of the mandatory or trustee powers, individual petitions or the site visits by the UN Trusteeship Council with suggested reforms that were actually implemented by the states concerned. Both the League and the United Nations, of course, spoke of moving the territories to independence. But such paternalism focused on autonomy was in fact seen as the antithesis of any paternalism (i.e. external involvement) in matters of governance. To prolong international supervision over trust territories in order to reform political institutions was rejected as, in effect, an excuse to avoid immediate decolonization. In the well-known words of the Declaration on the Granting of Independence to Colonial Countries and Peoples, “inadequacy of political, economic, social and educational prerequisites should never serve as a pretext for delaying independence.”6 The question of whether the recent missions have revived earlier notions of trusteeship is thus inseparable from the nature of the two regimes. I would like to argue that their distinctive normative settings and policy goals suggest that a common idea of trusteeship has not been revived.

B. Why Not a “Return” to Trusteeship? Two aspects of the recent missions suggest that their approach to the territories – paternalistic or otherwise – is wholly distinctive from that of the earlier missions. To label both as “trusteeship” may be useful for a taxonomy created at an extremely high level of generality that obscures these fundamental distinguishing features. But in my view international lawyers and policy-makers are better served by understanding the regimes as wholly distinct. Making that distinction clear requires focusing on two salient features of the regimes.

I. Distinct Objectives The first is the missions’ objectives. The territorial administrations have focused overwhelmingly on questions of governance in the territories, whereas the mandate and trusteeship systems addressed governance only tangentially. Of the three classes of mandate territories (A, B and C), only the former were explicitly promised a path to independent statehood. And only one (Iraq) actually achieved independence during the League’s lifetime. Perhaps more importantly, neither the

6

GA Res. 1514 (XV), 14 December 1960.

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League Covenant nor the mandate agreements required the mandatory powers to construct institutions of self-government in the territories or to ensure political rights that might lead to a capacity for self-government. In the trusteeship period, after an initial resistance by colonial powers, the United Nations did ultimately embrace independence as an essential opportunity for trust territories.7 In this the UN moved well beyond the League’s rather tepid view of independence. But in the rush to achieve independence, the Trusteeship Council and the General Assembly effectively abandoned any concern with how the newly independent states would be governed.8 None of the trusteeship territories (or any other colonial territories for that matter) received any assistance from the UN in building governing institutions prior to their independence. And the newly independent states would go on to oppose any concern with their internal governance as a neo-colonial effort to deny their self-determination by other means.9 This aversion to prescribing a blueprint for the territories’ domestic politics was fully consistent with the rush to independence that bypassed questions of capacity, commitment to inclusive politics or a willingness to allow external monitoring. By contrast, the contemporary missions have focused largely, and in some cases exclusively, on restructuring politics in the territories along liberal, democratic lines. In each of the four missions save that to Eastern Slavonia, the international administrators have overseen new constitutional orders, engaged in extensive legal reform, structured and monitored elections and sought to address legacies of discrimination against certain groups. The Eastern Slavonia mission pursued some of these goals, but in the context of reintegrating the region into existing Croatian political structures. The contemporary missions, in other words, went well beyond pursuing autonomy and nothing more – as did the trusteeship system and, to a much more limited extent, the mandate system. Instead, they sought to create inclusive, tolerant and democratic politics in the territories that would sustain itself once the international administrators departed.

7

Fox (note 5), 37–38. Ibid., 38–39. 9 For example, the newly independent states were the strongest supporters of the Friendly Relations Declaration, which declared that “[e]very State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State,” Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970. 8

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II. Distinct Normative Foundations The second distinguishing factor is the contemporary missions’ foundation in a distinct legal conception of the state. In my view, these missions have effectively implemented a particular vision of the state embodied in a series of emerging norms concerning national borders and populations. The mandate and trusteeship systems, by contrast, sought independence with little regard to the type of state that would emerge. The territorial administrations each governed fractured and chaotic states that had recently emerged from civil war. In each case, the fracturing occurred along ethnic or nationalist lines (Indonesian-Timorese; Serb-Bosniac; Croatian-Serb; Serb-Kosovar) that seemed incapable of repair (if at all) without significant outside intervention and supervision. Certainly the governments had lost legitimacy with large portions of their populations (and for good reason in many cases). The effective failure of central government in the target states is essential to understand the normative origins of the missions. Given that reality, why did the international community seek to hold these states together as coherent political communities – the declared objective of each mission? The UN and other international actors could have left the states to the historical fate of many similar territories. Unwanted populations might be slaughtered, expelled, confined to a subordinate status or pushed into ghettoized enclaves in the manner of the South African Bantustans. Or the state could have been allowed to fracture after its central institutions lost legitimacy among dissenting groups. Those groups would secede, leaving behind a rump state or no state at all. One can find many examples of these tactics throughout recent history.10 The “solutions” to civil wars and other forms of discontent with central governments were often brutal and rarely took account of the dissenting groups’ grievances. Thus, for hundreds of years, the idea that international law might oppose or even seek to halt radical changes in national borders and populations would have been laughable. These were the tectonic forces of power politics. International law might, at the margins, mitigate some of the more egregious consequences of these forces, but it did not seek to prevent states from fracturing or governments from imposing their will on dissident regions or minority groups. One need simply glance at a map of Europe at 50 year intervals in the 17th, 18th and 19th Centuries to confirm that borders were anything but immutable. And the much debated “nationalities” question in the 19th Century reveals the extent to which European states were prepared to suppress challenges to their dominant cultures from within.

10

Fox (note 5), 121–140.

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But in the late 20th century international law took all these means of fracturing state borders and populations “off the table” as legally sanctioned policy options. The details of how this has occurred, particularly in regard to secession, are voluminous and have been discussed at length elsewhere.11 The essential point is that international law now expresses a strong preference for preserving existing borders and populations. Expulsions must be reversed, property returned, minority populations treated as equal and secessionist impulses quelled and channeled into the political processes of existing states. The last point seems a particularly controversial one. But there is no case in recent history in which significant numbers of states or key international organizations have supported a secessionist movement as the preferred resolution of disputes with a parent state. Secessionist movements have repeatedly failed to gain the imprimatur of a legal entitlement to secede during the course of their struggles: groups with short (Biafra, South Yemen),12 medium (Chechnya, Abkazia, NgornoKarabakh, Somaliland)13 and long-standing claims (Cyprus, Eritrea, Quebec, the Basque region, Mayotte)14 have all failed to garner support from the UN and regional organizations and have only received scant, half-hearted support from individual states.15 Neither is support evident in interventions under United Na11

Ibid. See Thomas D. Musgrave, Self-Determination and National Minorities, 1997, 198 (Biafra); James Crawford, State Practice and International Law in Relation to Succession, The British Year Book of International Law (BYIL) 69 (1999), 85, 108 (South Yemen). 13 See David Raiþ, Statehood and the Law of Self-Determination, 2002, 383 (Abkhazia); id., 375 (Chechnya); Arnen Tamzarian, Nagorno-Karabagh’s Right to Political Independence Under International Law, Southwestern University Law Review 24 (1994), 183, 203 (Nagorno-Karabakh); on Somalia see IRIN Special – A Question of Recognition, Parts 1 and 2, 10 July 2001, available at http://www.reliefweb.int/IRIN/cea/countrystories/ somalia/20010710.phtml and http://www.reliefweb.int/IRIN/cea/countrystories/somalia/ 20010710a.phtml, quoting UN Special Representative for Somalia as saying that a 31 May 2001 independence referendum in Somaliland was “clearly not an internationally recognized referendum, and the outcome has no validity in the international community.” 14 David Wippman, International Law and Ethnic Conflict in Cyprus, 31 Texas International Law Journal 31 (1996), 141, 147 (Cyprus); Eyassu Gayim, The Eritrean Question, 1993 (Eritrea); Anne F. Bayefsky (ed.), Self-Determination in International Law: Quebec and Lessons Learned, 2000 (Quebec); C. Lloyd Brown-John, Self-Determination, Autonomy and State Secession in Federal Constitutional and International Law, South Texas Law Review 40 (1999), 567, 591 (Basques); Musgrave (note 12), 182–185 (Mayotte). 15 Two settlements to internal conflicts have provided for the possibility of secession if a majority in the affected territory agrees in a referendum, see Machakos Protocol, 20 July 2002, available at http://www.usip.org/library/pa/sudan/sudan_machakos07202002_toc. html (potential secession of Southern Sudan); Bougainville Peace Agreement, 30 August 2001, available at http://www.usip.org/library/pa/bougainville/bougain_20010830.html; 12

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tions auspices, which has never favored secessionist movements.16 Indeed, the UN virtually drove itself to bankruptcy and constitutional collapse in attempting to prevent secession by the Katanga province of the newly independent Congo in 1960.17 James Crawford has undertaken perhaps the most comprehensive review of state responses to secessionist claims. He reports that since 1945, “no State which has been created by unilateral secession has been admitted to the United Nations against the declared wishes of the government of the predecessor State.” While some states may, episodically, find reasons to support secessionists, every state has an interest in the territorial integrity norm. Thus, “[w]here the government of the State in question has maintained its opposition to the secession, such attempts have gained virtually no international support or recognition, and this has been true even when other humanitarian aspects of the situations have triggered widespread concern and action.”18 Of course, secessions have occurred and several, most prominently in Montenegro and Kosovo, are quite recent. But both came at the end of prolonged efforts to reach negotiated solutions short of secession after which no other policy options seemed available. These two cases represent not a collective preference for secession or even a tolerance of a right to secession, since both actions were described in very different legal terms.19 Instead, they reflect the (potential secession of Bougainville from Papua New Guinea). But these potentially consensual secessions would not be accomplished pursuant to a legal right asserted against the parent state, but by leave of that state. 16 While the UN Charter affirms the self-determination of peoples in Articles 2 and 55, the 1945 San Francisco Conference also made clear that self-determination “implied the right of self-government of peoples and not the right of secession,” Summary Report of 6th Meeting of Committee I/1, United Nations Conference on International Organization, Documents, vol. 6, 1945, 296. None of the sixty-one peacekeeping operations mounted by the UN since 1948, nor any of the eleven “political and peace-building” operations have manifest support for secessionists, see Background Note: United Nations Peacekeeping Operations, 31 August 2006, available at http://www.un.org/Depts/dpko/dpko/bnote.pdf (listing operations); Background Note: United Nations Political and Peace-Building Missions, 31 August 2006, available at http://www.un.org/Depts/dpko/dpko/ppbm.pdf (same). 17 See Thomas M. Franck/John Carrey, The Legal Aspects of the United Nations Action in the Congo, 1963. 18 James Crawford, State Practice and International Law in Relation to Succession, BYIL 69 (1999), 85, 108. 19 The EU made strenuous efforts to keep Serbia and Montenegro together. In 2001 Javier Solana declared that “[t]he European Union fully supports a democratic Montenegro within a democratic Yugoslavia. The EU opposes any unilateral steps which could run contrary to the stability of the region,” Statement by Dr. Javier Solana, EU High Representative for the CFSP, after the results on the Montenegro elections, 23 April 2001, available

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reality that nothing short of major military intervention could have prevented the secessions, an action that no major powers were prepared to take. The international administrations embody this normative preference for existing states. The missions have sought to hold antagonistic groups together within national borders that many of them regard as illegitimate and unsustainable. They seek to reverse ethnic cleansing and other forms of forced expulsion to the extent possible. And they seek to create inclusive democratic political institutions designed, perhaps naively, to create a sense of stake-holding in a fragile state. In all, the missions seek to reinvigorate, or perhaps create for the first time, a civic notion of citizenship that subordinates other ethnic, religious or national loyalties. As noted, this is the same goal sought by contemporary international law. The older missions lacked this or indeed any substantive conception of the state. The mandate and trusteeship arrangements were barely modified versions of the rule European powers exercised in their colonial territories. One could say that the regimes sought to implement a legal entitlement to independence for the territories, though even this goal was tepid in the case of the mandates and pursued meaningfully only after fifteen years of stalling in the case of trusteeships. And indeed “success” in administering the two sets of older territories could be defined in one word: independence. In theory the territories could choose another form of autonomy – and the UN organized and monitored referenda that held out this possibility – but all chose independent statehood.20 By contrast, success in administering the internationalized territories has been defined in terms that are both broader and deeper. They are broader because the new missions have not only sought to move territories to independence (East Timor) but toward several other legal positions as well: fully integrated statehood (Bosnia), functional autonomy (Kosovo) and reintegration into the political and at http://www.consilium.europa.eu/cms3_applications/applications/solana/details.asp? cmsid=335&BID=109&DocID=66158&insite=1. The final separation came pursuant to an agreement negotiated with the assistance of the EU, Fox (note 5), 128–130. The UN Special Envoy who recommended independence for Kosovo justified it on the grounds that the territory had been under Security Council supervision and thus did not serve as precedent for other secessions: “Kosovo is a unique case that demands a unique solution. It does not create a precedent for other unresolved conflicts. In unanimously adopting resolution 1244 (1999), the Security Council responded to Miloševiü’s actions in Kosovo by denying Serbia a role in its governance, placing Kosovo under temporary United Nations administration and envisaging a political process designed to determine Kosovo’s future. The combination of these factors makes Kosovo’s circumstances extraordinary.” Report of the Special Envoy of the Secretary-General on Kosovo’s future status, UN Doc. S/2007/168, para. 15. 20 See Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-determination and Transition to Democracy, 1994.

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economic life of a parent state (Eastern Slavonia). All seek to minimize dislocation of existing states. The new missions are deeper because, as noted, they address a host of governance questions not within the brief of earlier notions of trusteeship. Well-governed, inclusive states, the missions suggest, are more likely to remain coherent and viable.

C. Conclusions The allure of proclaiming a return to trusteeship is strong. After the two world wars, new international organizations articulated idealistic visions for territories seen as well outside the family of “civilized” nations. To further this vision a set of principles of administration and an international administrative infrastructure was established. And after the end of the Cold War, the four territorial administrations also proscribed an idealized future for states falling well short of international expectations. But to find these cases to be sufficiently similar that they merit grouping under a single label of “trusteeship” obscures more than it clarifies. The modern missions embody a series of remarkable normative innovations unique to the post-cold war period. The causes of state dysfunction, traditionally the most domestic of questions, have been internationalized. The causes of internal strife (such as disaffected minority groups, closed authoritarian governments, mass human rights abuses), civil war itself and domestic reforms designed to legitimize existing states and hold them together as viable political communities now dominate the agenda of the United Nations and other international organizations. Whether dysfunctional states can become legitimate in the eyes of their own populations is now a challenge for international law. The territorial administrations of the 1990s represent the most aggressive efforts yet at to preserve existing states. There is virtually nothing to be learned from the mandate or trusteeship experiences that would help contemporary international law understand this important phenomenon. At a minimum, the contemporary missions require their own analytical category and not conflation with notions of trusteeship borne of an entirely different era.

The International Committee of the Red Cross and the Challenges of Today’s Armed Conflicts By Robert Heinsch*

A. Introduction I. The ICRC’s Mission in General Since its creation in 1863, the International Committee of the Red Cross (ICRC) has been given a special role with respect to international humanitarian law (IHL).1 The 1949 Geneva Conventions and their 1977 Additional Protocols, as well as the Statutes of the International Red Cross and Red Crescent Movement, foresee the ICRC as the “guardian” and “promoter” of international humanitarian law.2 This special role includes a number of different aspects, such as endorsing *

The views expressed in this article are those of the author and do not necessarily represent the views of either the ICRC or the German Red Cross. 1 Cf. F. Bugnion, The International Committee of the Red Cross and the Protection of War Victims, 2003; D. P. Forsythe, The Humanitarians: The International Committee of the Red Cross, 2005; D. P. Forsythe, The International Committee of the Red Cross and International Humanitarian Law, Humanitäres Völkerrecht – Informationsschriften (HuV-I), 64–77; K. Dörmann/L. Maresca, The International Committee of the Red Cross and its Contribution to the Development of International Humanitarian Law in Specialized Documents, Chicago Journal of International Law 5 (2004), 12 et seq.; H. Haug, in cooperation with H. P. Gasser/F. Perret/J.-P. Robert-Tissot, Humanity for All: The International Red Cross and Red Crescent Movement, 1993; F. Bugnion, Le Comité International de la Croix-Rouge et la protection des victimes de la guerre, 1994; J. Pictet, Une Institution unique en son genre: Le Comité International de la Croix-Rouge, 1985; M. Sassòli/A. A. Bouvier, How does Law Protect in War ?, vol. 1, 2nd edition, 2006, 355–384. 2 See for a description of the role of the ICRC Article 5 of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 1995. Especially Article 5 (3) states that “the ICRC may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediate, and may consider any question requiring examination by such an institution.” Many of the activities carried out by the ICRC are covered by this special right of initiative, cf. Sassòli/Bouvier (note 1), 357.

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international humanitarian law treaties, monitoring the respect of international humanitarian law by the parties to armed conflicts, the dissemination of international humanitarian law, as well as supporting and developing new rules of international humanitarian law.3 However, a look at the history of international humanitarian law4 shows that the nature and patterns of armed conflict have changed over time and that the ICRC, as well as international humanitarian law, have often needed to respond to new challenges. As Luc Reydams has recently put it, there have been “great wars” and “total wars” like World War I and World War II,5 we have witnessed “international wars” and “non-international wars,” “decolonization wars” and “liberation wars,” and many people speak today of a “Global War on Terrorism.”6

II. What Are Today’s Predominant Types of Conflicts? An examination of the predominant types of wars today brings one to the conclusion that classic international armed conflict for “traditional” reasons like gaining new territory has become rare. “Territorial wars” of two states confronting each other have become more the exception than the rule. One of the few recent exceptions was the Iraq-Kuwait conflict in 1990–1991 when Saddam Hussein’s troops invaded Kuwait in order to annex the country.7 3

See, for example, Sassòli/Bouvier (note 1), 357–365 (364). Cf. C. Greenwood, Historical Development and Legal Basis, in: D. Fleck, The Handbook of International Humanitarian Law, 2nd edition 2008, 15–27; G. Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts, 1980; J. Pictet, La formation du droit international humanitaire, International Review of the Red Cross (IRRC) 321 (2002), 321–344; D. Schindler, International Humanitarian Law: Its Remarkable Development and its Persistent Violation, Journal of the History of International Law 5 (2003), 165–188. 5 For a detailed analysis of different types of armed conflicts, see L. Reydams, A la guerre comme à la guerre: patterns of armed conflict, humanitarian law responses and new challenges, IRRC 88 (2006), 729–756. 6 See, e.g. The White House Progress Report on the Global War on Terrorism, available at http://www.whitehouse.gov/homeland/progress/ (last visited 29 July 2008); also M. E. O’Connell, International Law and the “Global War on Terror,” 2007; see also Reydams (note 5), 750. 7 See C. Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule of Law, The Modern Law Review 55 (1992), 153–178; B. Graefrath/M. Mohr, Legal Consequences of an Act of Aggression: The Case of the Iraqi Invasion and Occupation of Kuwait, Austrian Journal of Public and International Law 43 (1992), 109–138; M. Weller, Iraq and Kuwait: The Hostilities and Their Aftermath, 1993. 4

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After the end of the Cold War in 1990, two special types of conflict have become much more “popular.” First, there is an increasing number of non-international armed conflict, such as the early phase of war in the Balkans and the civil wars in Rwanda, the Democratic Republic of Congo (DRC), in Uganda and Darfur, Sudan.8 Partly due to the instability ensuing in a world no longer dominated by a bipolar East-West conflict, the last two decades have witnessed a growing number of wars which can be coined “identity wars” or “ethnic wars” in many cases.9 Furthermore, we are now witnessing international wars, which involve a group of states on the one side, and states, which prima facie seem to be in violation of international law, on the other side.10 Examples are the Kosovo Conflict11 and the Afghanistan Conflict,12 while a more difficult example is the latest Iraq War led by the “Coalition of the Willing.”13 These kinds of conflicts are usually closely connected with the concepts of “humanitarian intervention”14 or “self-defense”15 as 8 Cf. L. Moir, The Law of Internal Armed Conflict, 2002; G. Abi-Saab, Non-International Armed Conflicts, in: Henry-Dunant Institute/UNESCO, International Dimensions of Humanitarian Law, 1988, 217–239. 9 Cf. Reydams (note 5), 744 with reference to S. Huntington, The Clash of Civilizations and the Remaking of World Order, 1997, chapter 10. 10 Very instructively dealing with this problem A. Cassese, Ex iniuria ius oritur: Are we moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, European Journal of International Law (EJIL) 10 (1999), 23 et seq. 11 See C. Chinkin, Kosovo: a “good” or “bad” war?, American Journal of International Law (AJIL) 93 (1999), 834; also T. M. Franck, Lessons from Kosovo, AJIL 93 (1999), 857; C. Greenwood, International Law and the NATO intervention in Kosovo, International and Comparative Law Quarterly (ICLQ) 49 (2000), 926 et seq. 12 Cf., for example, C. Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq, in: C. Greenwood, Essays on War in International Law, 2003, 667–700. 13 George W. Bush; see http://edition.cnn.com/2002/WORLD/europe/11/20/prague. bush.nato/ (last visited on 29 July 2008). 14 For more details on this topic which mainly is a problem of the jus ad bellum see: Cassese (note 10), 23–30; C. Chinkin, Kosovo: A “Good” or “Bad” War?, American Journal of International Law 93 (1999), 841 et seq.; T. M. Franck, Recourse to Force – State Action against Threats and Armed Attacks, 2002, 135–171; J. L. Holgrefe/R. O. Keohane, Humanitarian Intervention – Ethical, Legal, and Political Dilemmas, 2003; F. R. Tesón, Humanitarian Intervention: An Inquiry into the Law and Morality, 1997 15 For more details see Y. Dinstein, War, Aggression and Self-Defence, 2005, 145–249; C. Gray, International Law and the Use of Force, 2000, 84–119; Franck (note 14), 45–107; J. Delbrück, The fight against global terrorism: self-defense or collective security as international police action?, German Yearbook of International Law 44 (2001), 9 et seq.; T. F. Franck, Terrorism and the Right of Self-Defense, AJIL 95 (2001), 839 et seq.

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legitimization for the use of armed force, often as a reaction to terrorist activities. Apart from the problems which can be raised from a ius ad bellum point of view when dealing with these situations, conflicts such as the so-called “War on Terror” probably represent one of the biggest challenges for the law of armed conflict, i.e. the ius in bello, at the moment.16 In this context it has been argued that certain rules, or even the entire regime of international humanitarian law, are not applicable in some cases, for example, in the case of so-called “illegal combatants.”17

III. Can International Humanitarian Law Stand the Test of Time? Against the background of the “War against Terror” and keeping in mind the ICRC’s role as guardian and promoter of international humanitarian law, one of the major and obvious tasks for this institution is also to ensure the proper application of this special legal regime in conflicts which, at first glance, seem to deviate from the type of conflicts the drafters of the Geneva Conventions and the Additional Protocols had in mind.18 The ICRC is well aware of this problem and has conducted extensive research and communicated with many experts on the issues associated with “new” types of conflict.19 As we will see in the following paragraphs, the ICRC has come to the conclusion that existing treaties and concepts of international humanitarian law are well prepared to deal with even the new challenges of modern warfare, provided one is willing to examine the problems on a case-by-case basis and seeks to apply the law in the spirit of the general principles of the law of armed conflict.20 16

See supra note 6. For a thorough analysis of the problem see G. H. Aldrich, The Taliban, al Qaeda, and the Determination of Illegal Combatants, HuV-I 15 (2002), 202–207; G. H. Aldrich, The Taliban, al Qaeda, and the Determination of Illegal Combatants, AJIL 96 (2002), 891–896; I. Detter, The Law of War and Illegal Combatants, George Washington Law Review 75 (2007), 1049–1104; A. Behnsen, The Status of Mercenaries and other Illegal Combatants under International Humanitarian Law, German Yearbook of International Law 46 (2004), 494–536. 18 For a more detailed analysis, see R. Geiß, Asymmetric conflict structures, IRRC 88 (2006), 757–777. 19 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Document prepared by the International Committee of the Red Cross on the occasion of the 30th International Conference of the Red Cross and Red Crescent, 2007, download available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/30-internationalconference-working-documents-121007 (last visited on 27 July 2008), 12. 20 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19), 8. 17

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B. The Challenges for International Humanitarian Law with Regard to Today’s Armed Conflicts Although the difficulties surrounding today’s conflicts do not seem to lie in a lack of rules, international humanitarian lawyers do not normally wish to suggest that the law addressing all the problematic issues is already perfect. Since international humanitarian law has always been the product of a compromise between the considerations of humanity, military necessity and national security,21 it is obvious that constant review of the present body of law is necessary to ensure that international humanitarian law’s main purpose, the protection of the weak in armed conflicts, can still be achieved under changing circumstances. The subsequent sections will highlight some of the most problematic developments in international humanitarian law which have taken place during the last couple of years, and seek to show how international humanitarian law can tackle the current challenges in today’s international and non-international armed conflicts.22 In this regard, the present examination will take three parts. Section I examines how international humanitarian law addresses the fact that there is a growing number of non-international armed conflicts, but still only a “rudimentary” body of treaty law to deal with these internal wars. Section II highlights the most important issues surrounding the “War on Terror” and the problem of asymmetric warfare and how they can be solved. Finally, Section III answers the question whether we need a revision of the present rules of international humanitarian law. All this will be discussed against the background of the work and the role of the ICRC as a guardian and promoter of international humanitarian law.

I. Assimilation of the Rules for International and Non-International Armed Conflict 1. Is There Still a Clear-Cut Distinction between International and Non-International Armed Conflicts? Although international armed conflicts of the classic type have become rather seldom and the majority of armed conflicts now are non-international, international humanitarian law treaties still make a clear-cut distinction between the legal 21 Very instructive in this regard C. Greenwood, Humanitarian Requirements and Military Necessity, in: Fleck, Handbook (note 4), 35–39. 22 The ICRC’s view on many of the following issues can be found in ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19).

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regime for international armed conflicts and for non-international armed conflicts.23 This remains true even though, at first glance, no difference is apparent between victims of a violation of international humanitarian law in international armed conflicts compared to victims in non-international armed conflicts. There seems to be no logical reason why there are different rules for these two kinds of conflicts. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) has correctly stated: “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.”24 However, it is rather obvious why this distinction is still made. First, of course, there is the historical development25 of international humanitarian law treaties, which originated at a time when the majority of wars took place between sovereign states, and the fact that legal regimes take their time to adapt to changes in society. It is obvious that the Four Geneva Conventions of 1949, a major part of international humanitarian law, were drafted and signed in the aftermath of the Second World War, an unbelievably brutal armed conflict, which largely took place between independent nations. However, one provision was drafted at this time which, for the first time in history, dealt exclusively with non-international armed conflicts, and which is still extremely important for the work of the ICRC now: common Article 3.26 Twenty five years later, it was possible to achieve something beyond this single article dealing with the rules applicable in non-international armed conflict: the 1977 Second Additional Protocol to the Geneva Conventions.27 However, many 23 See, for example, C. Greenwood, Armed Conflict, in: Fleck, Handbook (note 4), 45–57; this however is counterbalanced by a new tendency which promulgates an almost complete assimilation of humanitarian law applicable in international and non-international armed conflict; see for example L. Moir, Towards the Unification of International Humanitarian Law, in: International conflict and security law: Essays in Memory of Hilaire McCoubrey, 2005, 108–128; the decisive impetus for this decision was given by the International Criminal Tribunal for the Former Yugoslavia in its decision ICTY, The Prosecutor v. Dusko Tadiü, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1/AR 72, para. 119. 24 ICTY, The Prosecutor v. Tadiü (note 23), para. 119. 25 For a more detailed description of the historical development, please cf. G. Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts, 1980; G. Draper, The Development of International Humanitarian Law, in: Henry-Dunant Institute/UNESCO (note 8), 67–90. 26 See D. A. Elder, The historical background of common Article 3 of the Geneva Conventions of 1949, Case Western Reserve Journal of International Law 11 (1979), 37–69. 27 Cf. M. Bothe/K. J. Partsch/W. A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949,

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people had hoped for more than just these 28 articles dealing with international humanitarian law in non-international armed conflicts, especially because of the brutal internal wars the world had witnessed in recent years. Nonetheless, the decisive reason we still make this distinction today stems from the obvious hesitancy of states to give up their sovereignty. States do not want to let other international actors judge them if they face allegations of IHL violations in cases when, for example, government troops are fighting against rebel groups. For a long time, and sometimes even today, states have viewed non-international armed conflicts as their internal affairs.28 Evidence that this is still a predominant attitude among states can be seen in the fact that the states drafting the Rome Statute for a Permanent International Criminal Court decided in 1998 to keep this distinction in Article 8 of the Statute dealing with war crimes, i.e. serious violations of international humanitarian law,29 even after some very progressive decisions of the ICTY, especially in the Tadiü case, in which it was stated that there is a growing body of customary rules governing internal strife.30 Although this stance was taken, it should nonetheless be noted that the drafters included many of the provisions highlighted by the ICTY as being customary law in non-international armed conflicts.31

2. Jurisprudence and Statutes of International Criminal Tribunals Have Assimilated the Two Legal Regimes Nevertheless, international humanitarian lawyers all over the world, and also the ICRC,32 have witnessed a development in the last decade, in which the two 1982; H. S. Levie, The Law of Non-International Armed Conflict: Protocol II to the 1949 Geneva Conventions, 1987; C. Swinarski/B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987. 28 M. Sassoli/A.A. Bouvier, How Does Law Protect in War?, 2006, 250. 29 For detailed background information on the drafting of Article 8 of the ICC Statute, see K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, 2003; see also M. Bothe, War Crimes, in: A. Cassese/P. Gaeta/J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, 379. 30 ICTY, The Prosecutor v. Tadiü (note 23), para. 127. 31 See M. Cottier, Article 8 War Crimes, para. 2 (b), in: O. Triffterer, Commentary on the Rome Statute of the International Criminal Court, 2nd edition 2008, 323; W. Schabas, An Introduction to the International Criminal Court, 2004, 54; G. Werle, Principles of International Criminal Law, 2005, 287. 32 The ICRC has published a study on customary international humanitarian law which in many ways restates the fact that nowadays many rules governing international armed con-

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legal regimes for international and non-international armed conflicts have become increasingly assimilated.33 The trigger for this development has been the jurisprudence of international criminal tribunals and courts, especially that of the ICTY, and later the International Criminal Tribunal for Rwanda (ICTR).34 Although there are few commentators who deny the influence of these tribunals, there are still far too many who maintain the belief that there is no room for international decisions being the cause for developing and creating new rules, as they are not usually seen as a formal “source” of international law according to the sources of international law reflected in Article 38 of the Statute of the International Court of Justice (ICJ).35 This is despite the fact that the ICTY Appeals Chamber Tadiü Decision on Interlocutory Appeal, for example, did not just “invent” rules applicable in non-international armed conflicts, but chose to go through a more or less thorough analysis of state practice and opinio iuris in order to establish the existence of specific international humanitarian law rules applicable in non-international armed conflicts, which cover such areas as (1) the protection of civilians from hostilities, in particular from indiscriminate attacks, (2) the protection of civilian objects, in particular cultural property, (3) the protection of all those who do not (or no longer) take active part in hostilities, as well as (4) the prohibition of means of warfare proscribed in international armed conflicts, and finally, (5) the ban on certain methods of conducting hostilities.36 The ICTY took an even bolder approach later in the Martiü Rule 61 decision, stating that “the rule which states that reprisals against the civilian population … flict are also applicable also in non-international armed conflict; see e.g., J.-M. Heckaerts/L. Doswald-Beck, Customary International Humanitarian Law, vol. I: Rules, 9; see also J.-M. Henckaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, IRRC 87 (2005), 175–212 (188). 33 J. G. Stewart, Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, IRRC 85 (2003), 313. 34 See also for a detailed analysis of the catalytic function of the jurisprudence of ICTY and ICTR R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda, 2007, 82–221 and 377–386; coming to similar conclusions with regard to the developments over the past ten years Reydams (note 5), 755. 35 This is still the prevailing opinion: I. Brownlie, Principles of Public International Law, 2003, 19; G. Dahm/J. Delbrück/R. Wolfrum, Völkerrecht, 1989, vol. I/1, 77; K. Doehring, Völkerrecht, 2nd edition 2004, margin number 281; H. Lauterpacht, Development of International Law, 1958, 20; R. Monaco, Sources of International Law, in: R. Bernhardt (ed.), Encyclopaedia of Public International Law, vol. IV, 2000, 474. 36 ICTY, The Prosecutor v. Tadiü (note 23), para. 127.

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as such are prohibited in all circumstances … is an integral part of customary international law and must be respected in all armed conflicts.”37 This was confirmed in the Kuprešciü Trial Judgement,38 a decision in which the Tribunal backed up its arguments by referring to the Martens Clause39 for cases in which state practice is not consistent, but “that the demands of humanity and the dictates of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of customary law also binding those few states that at some stage did not intend to exclude the abstract legal possibility of resorting to the reprisals under discussion.”40 Without going into detail on the possible role of the Martens clause, one can make the observation that there seems to be a tendency to use alternative ways of lawmaking to provide a quick response in times where world politics and new challenges to the legal regime require an adjustment of the lex lata. This sometimes runs under the heading of “instant customary law,”41 sometimes it is called “judge-made law,”42 but, in the end, it is often new international actors, such as international tribunals and NGOs, which influence the traditional lawmakers of public international law, i.e. the states, by using arguments which could very well be derived from natural law. There are many commentators who say that the ICTY merely stated the existence of customary rules of international law, but when looking at the further development, one can also be of the opinion that these decisions were more or less the starting point of a process in which the two legal regimes for international and 37 ICTY, The Prosecutor v. Martiü, Trial Chamber, Rule 61 Decision, 8 March 1996, IT-95-11-R61, para. 16. 38 ICTY, The Prosecutor v. Kuprešciü et al. (Foca I), Trial Chamber, Judgement, 14 January 2000, IT-95-16-T, paras. 527–536. 39 The Martens clause as taken from the Preamble of the 1899 Hague Convention (II) reads: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience;” see also R. Ticehurst, The Martens Clause and the Laws of Armed Conflict, IRRC (1997), 125–134; A. Cassese, The Martens Clause: Half a Loaf or Simply Pie in the Sky?, EJIL 11 (2000), 187–216; T. Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, AJIL 94 (2000), 78–89. 40 ICTY, The Prosecutor v. Kuprešciü et al. (note 38), para. 533. 41 B. Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law?, Indian Journal of International Law 5 (1965), 23–48, coined this term. 42 J. Vogel, in: A. Zimmermann (ed.), International Criminal Law and the Current Development of Public International Law, 2003, 80: “international criminal law is judgemade law.”

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non-international armed conflict became more and more assimilated.43 State practice and international treaties took over this approach afterwards, as demonstrated, for example, by Article 8 of the Rome Statute, the 1996 Second Protocol to the 1980 Weapons Conventions, the 1997 Ottawa Convention, the 1999 Second Hague Protocol to the Hague Convention for the Protection of Cultural Property and the 2001 Amendment of Article 1 of the Weapons Convention. Even more obvious were the subsequent statutes for the so-called hybrid or “internationalized” tribunals like the Special Court for Sierra Leone or the Special Tribunal for Cambodia.44 From these examples, but also from various national court decisions and national war crimes legislation45 like the German Code of Crimes against International Law (Völkerstrafgesetzbuch),46 it is possible to deduce states’ willingness to accept the growing assimilation of the legal regimes for international and non-international armed conflict. The German Code of Crimes against International Law even goes one step beyond the Rome Statute and almost completely abandons the distinction between international and non-international law.47 In this regard, I am very much in agreement with a statement made a couple of years ago at a symposium in Kiel where Joachim Vogel stated that “ [a]t face value, international criminal law is judge-made law, case law created by the respective

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Heinsch (note 34), 227–286; Moir (note 23), 108–128; R. Arnold, The Development of the Notion of War Crimes in Non-International Conflicts through the Jurisprudence of the UN Ad Hoc Tribunals, HuV-I 2002, 134 et seq.; S. Boelaert-Suominen, The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts, Leiden Journal of International Law 13 (2000), 619 et seq.; see also S. Boelaert-Suominen, Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary International Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?, Journal of Conflict and Security Law 5 (2000), 63 et seq. 44 For a detailed description of these tribunals, please refer to C. Romano/A. Nollkaemper/J. Kleffner, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, 2004. 45 For an overview, please refer to C. Kreß/F. Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, vol. I, 2000; see also M. Neuner (ed.), National Legislation Incorporating International Crimes, 2003. 46 Code of Crimes against International Law, 26 June 2002, available at http://www. iuscomp.org/gla/statutes/VoeStGB.pdf (last visited 30 July 2008). 47 See G. Werle/V. Nerlich, Die Strafbarkeit von Kriegsverbrechen nach deutschem Recht, HuV-I 2002, 124; see also C. Kreß, Vom Nutzen eines deutschen Völkerstrafgesetzbuchs, 2002; S. R. Lüder/T. Vormbaum, Materialien zum Völkerstrafgesetzbuch, 2003; H. Satzger, Das neue Völkerstrafgesetzbuch – Eine kritische Würdigung, Neue Zeitschrift für Strafrecht 2002, 125; A. Zimmermann, Auf dem Weg zu einem deutschen Völkerstrafgesetzbuch, Zeitschrift für Rechtspolitik 2002, 97.

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Tribunals at Nuremberg, Tokyo, The Hague and Arusha.”48 This judge-made law has had a major impact on the development of international humanitarian law in the last fifteen years.

3. Customary Law as Presented in the ICRC Study Reflects this Assimilation This aspect of the development of international humanitarian law is clearly reflected in the ICRC Study on Customary International Humanitarian Law49 which was published in 2005, ten years after the 26th International Conference of the Red Cross and the Red Crescent had mandated the ICRC to prepare a report on the customary rules of international humanitarian law. Without going into too much detail concerning the history and content of the study,50 it should nevertheless be mentioned that only 16 of the 157 customary legal rules identified in the study, i.e. roughly 10 % of the rules, are seen to be applicable only in international armed conflicts. The rest of these rules are applicable in international as well as non-international armed conflicts.51 Admittedly, these results have been subjected to some criticism by various commentators.52 48

Vogel (note 42), 80 (emphasis added). J.-M. Henckaerts/L. Doswald-Beck, Customary International Humanitarian Law, vol. I: Rules, vol. II: Practice, 2005. 50 For further information and evaluation of the ICRC study, please refer to: G. H. Aldrich, Customary International Law – An Interpretation on behalf of the International Committee of the Red Cross, The British Year Book of International Law 76 (2005), 503–524; M. Bothe, Customary international humanitarian law: some reflections on the ICRC study, Yearbook of International Humanitarian Law 8 (2005), 143–178; M. Cowling, International lawmaking in action – the 2005 customary international humanitarian law study and non-international armed conflicts, African yearbook on international humanitarian law 1 (2006), 65–87; R. Cryer, Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study, Journal of Conflict and Security Law 11 (2006), 239–263; Y. Dinstein, The ICRC Customary International Law Study, Israel Yearbook on Human Rights 36 (2006), 1–15; L. Doswald-Beck, Developments in Customary International Humanitarian Law, Schweizerische Zeitschrift für Internationales und Europäisches Recht 15 (2005), 471–498; D. Fleck, International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law, Journal of Conflict and Security Law 11 (2006), 179–199; Henckaerts (note 35), 175–212. 51 See Henckaerts (note 32), 175–212 (198–212). 52 Prime of place has here the reaction of the US government: U.S. Initial Reactions to ICRC Study on Customary International Law, Nov. 3, 2006; available at http://www.state. gov/s/l/rls/82630.htm and http://www.defenselink.mil/home/pdf/Customary_ International_Humanitiarian_Law.pdf (last visited 30 July 2008); see also J. M. Henckaerts, 49

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If you compare these numbers with the ratio reflected in the Geneva Conventions (one common Article 3 compared to several hundreds of articles in the Geneva Conventions) or in the Additional Protocols (28 articles in AP II compared to 102 articles in AP I), international humanitarian law has obviously come a long way toward an assimilation of the legal regimes for international and non-international armed conflicts. This is a tendency which is supported by the ICRC, although, as far as I can see it, the institution is always very careful not to become “over-ambitious” with regard to this development in order to ensure general agreement among the states parties to the Geneva Conventions and other international humanitarian law treaties. This institutional policy is visible in the fact that the organization engaged in ten years of research with the help of researchers in nearly 50 states before it finished the Customary Law Study.53 II. The Challenges of Asymmetrical Warfare and Terrorism54 1. Today’s Discussion Does Not Circle around Non-International or International Armed Conflict but Rather on IHL or Not IHL The assimilation of the regimes for international and non-international armed conflict was the major achievement of the period between 1995 and 2005, starting with the ICTY Tadiü case and peaking with the publication of the ICRC Study on Customary International Humanitarian Law. The most recent challenges to international humanitarian law and the mission of the ICRC, however, do not actually so much involve the classical distinction between international and non-international armed conflict and their different fields of applicability. Rather, one is tempted to ask the question nowadays whether international humanitarian law is

Customary International Humanitarian Law: a response to US comments, IRRC 89 (2007), 473–488; see also ICRC’s Jean-Marie Henckaerts responds to comments on ICRC customary law study, which can be found at Kenneth Anderson’s Law of War and Just War Theory Blog, 26 January 2006, http://kennethandersonlawofwar.blogspot.com/2006/01/icrcs-jeanmarie-henckaerts-responds.html (last visited on 30 July 2008); for a balanced discussion of the study, see E. Wilmshurst/S. Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law, 2007. 53 Henckaerts (note 32), 175–212 (184–186). 54 For an overview of how international law has already dealt with terrorism for many decades, see D. O’Donnell, International treaties against terrorism and the use of terrorism during armed conflict by armed forces, IRRC 88 (2006), 853–880.

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suited to deal with the problems of today’s warfare at all and whether there is room for its application even with new actors like organized terrorist groups.55 More than ever, and especially after the incidents surrounding the 11 September attack on the World Trade Center, the question has been raised whether we need a new set of rules of international humanitarian law56 which is able to deal with the new kinds of conflicts57 created by the growing fear of terrorism,58 the rising importance of transnational actors59 like Al Qaeda or other terrorist organizations, and the ensuing new types of conflict we have witnessed during the last couple of years, characterized in many cases by “asymmetrical warfare.”60 But is it really true that the current system of international law and, in particular, international humanitarian law needs a revision?61 And what is the position of the ICRC in this regard?62 First of all, it should be stressed that asymmetric warfare is nothing new in the history of armed conflict. We are all familiar with the

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Very instructively dealing with these kind of questions J.-P. Lavoyer, International Humanitarian Law: Should It Be Reaffirmed, Clarified or Developed?, Israel Yearbook on Human Rights 34 (2004), 35–58. 56 See Lavoyer (note 55), 35–58, for a general overview not only dealing the “war against terrorism”; see also T. Pfanner, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, IRRC 87 (2005) 149–174, 158. 57 See for more details with regard to the new type of conflicts, I. Herrmann/D. Palmieri, Les nouveaux conflits: une modernité archaïque?, IRRC 85 (2003), 23–44. 58 O’Donnell (note 54), 853–860, gives an overview on the problems on the one hand and the legal instruments on the other hand which deal with the phenomenon of “terrorism.” 59 Cf. H.-J. Heintze, Do Non-State Actors Challenge International Humanitarian Law?, in: W. Heintschel von Heinegg/V. Epping (eds.), International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen, 2007, 163–170. 60 Cf. M. N. Schmitt, Asymmetrical Warfare and International Humanitarian Law, in: Heintschel von Heinegg/Epping (note 59), 11–49; Pfanner (note 56), see also Geiß (note 18), 757–777, who discusses the problems for international law arising from asymmetric warfare. 61 A multi-facetted description of various aspects of contemporary international humanitarian law can be found in Heintschel von Heinegg/Epping (note 59). 62 A thorough analysis of the ICRC views on the current challenges of contemporary armed conflicts can be found in International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19); see also the preceding report: ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared by the International Committee of the Red Cross on the occasion of the 29th International Conference of the Red Cross and Red Crescent (ICRC Report 2003).

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biblical story of David and Goliath.63 The unexpected outcome of this situation was that the weaker soldier actually won the battle. This obviously is rarely the case at the moment. Furthermore, as already indicated, symmetrical wars between states have become even riskier than they have always been, as it is now almost impossible to anticipate which party will win the war in such cases. It is often the reality, as well, that the costs outweigh the anticipated benefits.64 It is important to note that even international armed conflicts in our time have a tendency to be asymmetric. States, as such, and especially the great military powers, only seem to be willing to go to war when they, because of their overwhelming military and technological force, can be sure of winning.65 The Gulf War in the early nineties is a good example of this kind of conflict. However, internal wars are also asymmetric by definition in most cases as they usually involve largely well-equipped government troops fighting rebels who must look for alternative ways of winning the war.66 Toni Pfanner from the ICRC stated that “[i]n this type of conflict, which is to be found in most of the areas where the ICRC works, inequality between the belligerents and their weaponry is the rule rather than the exception.”67 Examples for these conflicts are Chechnya and Darfur. At least since 11 September 2001, we have witnessed new forms of transnational violence and international terrorism involving highly organized individual groups taking concerted action even against a superpower like the USA. Typical of this new form of conflict is the fact that the terrorists are usually no longer associated with a specific territory. However, this rather new phenomenon can nevertheless display characteristics which include traditional concepts like international and non-international armed conflicts.68 63

Pfanner (note 56), 150, reiterates the story with the following words: “The Old Testament recounts how King Saul’s army, terrified of fighting the great and seemingly invincible Philistine armies with their thundering giants, had been unable to beat them. Since no soldier was willing to face the Philistine champion, the giant Goliath, the young shepherd David took up the challenge. Raising his sling, he threw a smooth stone at the giant’s forehead and Goliath fell face down onto the ground. David ran over to him, drew the giant’s sword from its sheath, stabbed him with it and then lopped off his head, whereupon the Philistine soldiers fled in panic.” 64 Ibid., 152. 65 Ibid. 66 Ibid., 153 et seq. 67 Ibid., 153. 68 The ICRC especially emphasizes that you have to use the traditional methods in order to decide whether “the war against terror” actually amounts to an international or non-international armed conflict and that “each situation of organized armed violence must be examined in the specific context in which it takes place and must be legally qualified as

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A common denominator of all these typical asymmetrical conflicts is the fact that there is an apparent discrepancy between the belligerents due to the special situation, which will tempt the weaker party to use means and methods of warfare that are prohibited under international humanitarian law.69 What kind of impact this has on the present status quo of international humanitarian law and the role of the ICRC must still be fully examined, but there is a high probability that this discrepancy will increase in future military scenarios.

2. Is the “War Against Terrorism” an Armed Conflict in the Sense of IHL? A crucial question is whether the so-called “Global War against Terrorism”70 actually is an armed conflict in the sense of international humanitarian law. One must unfortunately say that there has been some confusion regarding this, not only in public opinion, but also even among scholars. This confusion might have deliberately been created by some international actors which chose the terminology in order to underline a shift “from a criminal justice approach to terrorism to a war paradigm.”71 Since some voices have tried to qualify the terrorist attacks of 11 September and the ensuing counter-terrorist activities as an ongoing armed conflict,72 some commentators were tempted to say that international humanitarian law is not well suited to deal with this kind of conflict and the challenges involved. In some ways, these voices were not so wrong, as IHL never intended to deal with these issues precisely because they were happening outside an armed conflict. But the main reason for this is the misleading assumption that we are addressing one single ongoing international armed conflict. Although the Security Council has passed a resolution confirming the USA’s inherent right to self-defense after 11

armed conflict, or not, based on the actual circumstances. The law of war was tailored for situations of armed conflict, both from a practical and a legal standpoint,” International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19),7–8. 69 Lavoyer (note 55), 38; see also Schmitt (note 60), 12–15. 70 See e.g. The White House (note 6); C. Greenwood, International Law and the “War on Terrorism,” in: J. Davis (ed.), The Global War on Terrorism: Assessing the American Response, 2005, 45–59; Reydams (note 5), 750; Lavoyer (note 55), 39. 71 Reydams (note 5), 750–751, referring to George W. Bush’s military order regarding the “Detention, treatment, and trial of certain non-citizens in the war against terrorism,” available at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html. 72 See, e.g., J. Elsea, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, CRS Report for Congress, 11 December 2001, CRS-14, available at http://www.fas.org/irp/crs/RL31191.pdf (last visited 31 July 2008).

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September,73 this does not automatically establish that we have an international armed conflict according to international humanitarian law. We must always be careful not to confuse the question of the applicability of international humanitarian law (ius in bello) with the question of the legitimacy of an armed attack (ius ad bellum).74 The ICRC, for its part, has come to the conclusion that “it feels uncomfortable with the notion that the different attacks and reactions thereto are part of a worldwide armed conflict. The ‘war on terror’ does not fit well into the existing categories of armed conflicts.”75 The reason for this is that international armed conflicts only exist when there is armed violence between two states. However, the relevant terrorist and counter-terrorist activities typically do not satisfy this criterion, because the terrorist activities cannot usually be attributed to a state. There are obviously situations in which armed activity in the context of counter-terrorist activities will pass the threshold of an international armed conflict, for example in the case of the coalition’s military operations against Afghanistan and Iraq. However, it is important to stress again that this must be decided on a case-bycase basis and one cannot assume that a worldwide international armed conflict started on 11 September 2001 that is ongoing until the last terrorist cell will be eliminated. As the ICRC very clearly stated in its 2007 Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, “each situation of organized armed violence must be examined in the specific context in which it takes place and must be legally qualified as armed conflict, or not, based on the actual circumstances. The law of war was tailored for situations of armed conflict, both from a practical and a legal standpoint. … In other words, it is both dangerous and unnecessary, in practical terms, to apply IHL to situations that do not amount to war. This is not always fully appreciated.”76 The same problem arises with regard to the question of whether we might have an ongoing non-international armed conflict. A well-established definition of the term “armed conflict” states that “an armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental 73

Actually the Security Council referred in two resolutions to the right to self-defense with regard to the 11 September attacks: UN S.C. Res. 1368 (2001); UN S.C. Res. 1373 (2001). 74 Lavoyer (note 55), 39, also remarks that “there is all too often confusion between jus in bello and jus ad bellum;” Pfanner (note 56), 159, states that “the rules of the law of armed conflict should apply to any armed conflict, irrespective of whether it is lawful or not” with reference to paragraph 5 of the preamble to the 1977 First Additional Protocol. 75 Lavoyer (note 55), 40. 76 ICRC (note 19), 8.

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authorities and organized armed groups or between such groups within a state.”77 If we look at the second part of this definition, which actually deals with internal armed conflicts, we see that there, in fact, could be an internal armed conflict if the terrorist groups would fight for a longer time on the territory of the USA, for example. However, at least in the case of the attacks against the World Trade Center and the US Pentagon, one can hardly say that there has been “protracted armed violence” between US governmental authorities and Al-Qaeda terrorists on US territory. It is important to note that – in the ICRC’s opinion – if you come to the conclusion that an armed conflict actually exists (whether international or non-international), this brings the consequence with it that “all the parties to the conflict have the same rights and obligations.”78 This means that qualifying the “War on Terror” as an overall (and perhaps never-ending) armed conflict would legitimize transnational terrorist groups as belligerent parties to an armed conflict. This would also entail rights and duties under international humanitarian law. However, if one follows the debate circling around the “War on Terror,” one could get the impression – at least until very recently – that this was not intended by the affected states. Although the “War on Terror” cannot, in general, be termed an armed conflict under international humanitarian law, there is the possibility that certain fighting activities can actually amount to an armed conflict. One very good example is the military operation led by the US against Afghanistan starting on 7 October 2001. This was obviously an international armed conflict with a coalition of states on the one side and the sovereign state of Afghanistan on the other side,79 the conflict being related to the terrorist attacks on the Twin Towers. The same holds true for the military campaign led by the USA against Saddam Hussein’s regime in Iraq,80 although the links to international terrorism here have been quite controversially discussed. 77

ICTY, The Prosecutor v. Tadiü (note 23), para. 70. Lavoyer (note 55), 40. 79 For a detailed analysis of the conflict, see P. G. Danchin, Human Rights, Humanitarian Law and the “War on Terrorism,” in: D. Dijkzeul (ed.), Between Force and Mercy: Military Action and Humanitarian Aid, 2004, 111–145; R. Gutman, Ways to Bind NonState Actors to International Humanitarian Law: Afghanistan – A Case Study, in: College of Europe, Relevance of international humanitarian law to non-state actors: proceedings of the Bruges Colloquium, 25–26 October 2002, 113–121. 80 See e.g. Z. A. Hassani, International Humanitarian Law and its Implementation in Iraq, IRRC 90 (2008), 51–70 (52); for a thorough analysis of the applicability of International Humanitarian Law to the War on Terror, see D. McGoldrick, From 9–11 to the War in Iraq 2003: International Law in an Age of Complexity, 2004, 30–32. 78

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In the end, however, the link to possible terrorist groups is actually not important for determining whether we are looking at an armed conflict – be it international or non-international. One of the most important principles of international humanitarian law is that international humanitarian law does not differentiate whether it is a just war or not, whether it has political, religious or other such motives.81 The only aspect of importance is whether there is an armed conflict between states or protracted armed violence between organized armed groups or with government forces, that is, whether there is an international or a non-international armed conflict. If we can affirm these criteria, then international humanitarian law is usually applicable – be it treaty law or customary law. Therefore, concerning the initial question whether international humanitarian law is suited to deal with terrorist attacks, one must limit this, at least, to cases where international humanitarian law is actually applicable. As the ICRC has highlighted: “Simply put, where violence reaches the threshold of armed conflict, whether international or noninternational, IHL is applicable. Where it does not, other bodies of law come into play.”82 The problem that still remains, even when dealing with an international or noninternational armed conflict, is that one of the prime characteristics of terrorist groups is that they do not feel obliged to be bound by any kind of law. The very purpose of their actions is to violate the rules of the present legal order. One could even say that “by definition terrorists and criminals operate outside the law.”83 This is extremely problematic because international humanitarian law, as such, begins with the assumption that the warring parties, even though they are engaged in an armed conflict, usually stick to the rules governing armed conflict, primarily for reasons of reciprocity84 and the concept of pacta sunt servanda. However, terrorists do not feel bound by such concepts and deliberately break the rules of the international and national legal orders. In that regard, one could actually argue that international humanitarian law is not the right tool to deal with these situations. Jean-Philippe Lavoyer put it in a nutshell when he stated that “experience has shown that armed conflict – and international humanitarian law – are usually not the best tool to fight terrorism, since force as such will often not lead to the most adequate solution to the problem.”85 Among the more effective tools are interna81

Cf. e.g. M. Sassòli/A. Bouvier, How does law protect in war?, 2006, 103–104. ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19), 7. 83 Reydams (note 5), 756. 84 Cf. Pfanner (note 56), 161, who notes that “(i)n asymmetrical wars, the expectation of reciprocity is basically betrayed and the chivalrous ethos is frequently replaced by treachery.” 85 Lavoyer (note 55), 41. 82

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tional cooperation between states, i.e. sharing of intelligence, police and judicial cooperation; domestic law enforcement; financial investigations and freezing of assets belonging to terrorist groups; improved control of arms trade and of the proliferation of weapons of mass destruction.86 Similarly, the ICRC has stated in its 2007 Report that “the fight against terrorism requires the application of a range of measures – investigative, diplomatic, financial, economic, legal, educational, and so forth – spanning the entire spectrum from peacetime to armed conflict and that IHL cannot be the sole legal tool relied on in such a complex endeavor.”87 To summarize this point: Terrorists use criminal means to achieve their goals, therefore it is advisable to use counter-mechanisms known at the national level – police force and criminal prosecution – at the international level, too. We all know that this area, probably covered by the term “international security law,” is still in an imperfect state. Nonetheless, it would be wrong to claim that international humanitarian law is not equipped to deal with these challenges because this area of law is still in a state of evolution. If you have a look at the roots and the very objective of international humanitarian law, you must come to the conclusion that international humanitarian law was never actually set up to deal with these kind of situations.

3. How Does International Humanitarian Law Deal with “Illegal Combatants?” However, one situation which has come up in the context of the “War against Terror” has been the detention of so-called “illegal combatants.” These are persons who were caught after 11 September, particularly in the context of US military operations, and were taken to detention camps like Guantanamo Bay in Cuba. In the beginning – but also, in some way, even today – the US administration claimed that these persons, supposedly involved in the terrorist attacks of 11 September or otherwise under suspicion of planning future terrorist attacks, have become “illegal combatants” who would, in principle, not fall under the protection of the Geneva Conventions or other human rights treaties. This problem should only be dealt with briefly, since the topic has been covered extensively by others already.88 It is, nonetheless, an important example of a case 86

Ibid. International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19), 10. 88 See for a detailed analysis of the problem: G. H. Aldrich, The Taliban, al Qaeda, and the Determination of Illegal Combatants, Humanitäres Völkerrecht – Informationsschriften 87

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where the rules of international humanitarian law must still be taken into account in cases where their applicability is triggered by an armed conflict like, for example, in Afghanistan and Iraq. First of all, it should be very clear that, in general, a combatant captured during combat activities in an international armed conflict benefits from a presumption of being a Prisoner of War (POW).89 In case there is doubt in regard to the status of the captured person, Article 5 of Geneva Convention III foresees that competent tribunals must determine the nature of the detained person’s status. Summarily depriving captured combatants from either the presumption of POW status or a determination by a competent tribunal just because they are supposed to have some kind of link to international terrorism must raise serious concerns.90 The ICRC and most international humanitarian law experts have made it clear that a case-by-case analysis has to take place instead, and in the first place, all combatants captured by Coalition forces in the conflicts in Afghanistan or Iraq should logically be given POW status unless decided otherwise by a competent tribunal.91 Dealing with the concrete example in Afghanistan one might come to different results concerning fighters of the Taliban and members of Al-Qaeda. However, as we already know, the respective “Combatant Status Review Tribunals”92 instituted in Guantanamo have only granted POW status to detainees in very rare cases. But even when the result is that detainees are not entitled to POW status, there is, nonetheless, comprehensive protection from the perspective of international humanitarian law: a person is protected either by Geneva Convention III or by Geneva Convention IV. Even in times when an “unprivileged belligerent” – perhaps because of his nationality – does not fall under Geneva Convention IV, international humanitarian law provides for additional safeguards like common Article 3 and Article 75 AP I which are both accepted as rules of customary law. And 15 (2004), 202–206; G. H. Aldrich, The Taliban, al Qaeda, and the Determination of Illegal Combatants, AJIL 96 (2002), 891–898; see also K. Dörmann, The legal situation of “unlawful/unprivileged combatants,” IRRC 85 (2003), 45–74; Detter (note 17), 1049–1104; Behnsen (note 17), 494–536. 89 Article 45, para. 1 of AP I states: “A person who takes part in hostilities and falls into the power of an adverse party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Geneva Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such a status on his behalf by notification to the detaining power or to the protecting power.” 90 Lavoyer (note 55), 41. 91 Ibid. 92 For a discussion of these controversial tribunals, see e.g. J. Blocher, Combatant Status Review Tribunals: Flawed Answers to the Wrong Question, in: The Yale Law Journal 116 (2006), 667–674.

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finally, we have international human rights law and national law which give protection to detained persons. There is no “legal black hole”93 in which people can disappear, even in times of international terrorism. However, the ICRC has responded to the recent development with regard to internment, also outside of armed conflicts, and has set up “Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence.”94

4. Definition for “Direct Participation of Civilians” Of course, there is the possibility that civilians lose their protection as civilians by carrying out attacks, otherwise referred to as “direct participation in hostilities.”95 In this situation the civilian actually becomes an “unprivileged belligerent” and a legitimate military target, and he can also be held criminally responsible for having participated in the attack. This is important to note because it contradicts the contention that international humanitarian law would prevent justice being done. It should be clear that the opposite is actually true. The issue of direct participation of hostilities was already discussed in 2003 during a symposium of renowned international humanitarian law experts jointly organized by the ICRC and the TMC Asser Institute in The Hague. The seminar proved that there is a definite need for clarification of this key concept – especially with regard to the discussion evolving around “unlawful combatants.” The ICRC will carry on dealing with and supporting this discussion in order to establish clarity for situations when civilians can lose their privileged position. When international humanitarian law is applicable in those cases, it also gives clear answers to the question when these detainees must be released, namely at the end of the hostilities,96 and not at the end of the ominous “War against Terror” which could last decades if we are pessimistic.

93

See for example J. Steyn, Guantanamo Bay: The Legal Black Hole, International and Comparative Law Quarterly 53 (2004), 1–15, and N. R. Sonnet, Guantanamo: Still a Legal Black Hole, Human Rights 33 (2006), 8–9, using this term in their articles discussing the problems at Guantanamo. 94 See J. Pejic, Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence, IRRC 87 (2005), 375–391. 95 Article 51 (3) AP I and Article 13 (3) AP II; for more details see M. N. Schmitt, “Direct Participation in hostilities” and 21st century armed conflict, in: H. Fischer et al. (eds.), Krisensicherung und humanitärer Schutz: Festschrift für Dieter Fleck, 2004, 505–529. 96 Article 118 Geneva Convention III.

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III. Do We Need a Revision of the Present Rules of International Humanitarian Law? The examples of “illegal combatants” and “direct participation in hostilities” have shown that, in cases when international humanitarian law is applicable to situations in which the armed force used in terrorist attacks and the ensuing counterterrorist activities surpass the threshold of armed conflict, the present corpus of international humanitarian law offers enough provisions to deal with situations arising from the “War against Terror.” This is also reflected in the substantial provisions covering acts which are customarily made use of by terrorists: for example, Article 51 (2) AP I and Article 13 (2) AP II prohibit “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” One of the pivotal rules of international humanitarian law forbids attacks against the civilian population as such, including direct and indiscriminate attacks.97 Furthermore, the taking of hostages is forbidden.98 There are various other examples which, because of the limited space, will not be dealt with in detail.99 The points raised could demonstrate – from the ICRC’s point of view, as well – that international humanitarian law is, in fact, capable of dealing with today’s challenges of international and non-international armed conflicts if – and this “if” is very important – one takes care to apply international humanitarian law norms in their correct form only in the cases for which they were foreseen, that is, only in international or non-international armed conflicts.100 As the ICRC has put it: “[I]n current armed conflicts, the problem is not the lack of rules, but a lack of respect for them.”101 In all other cases, legal regimes like international human rights law or national criminal law will probably play a more important role because they were designed for these kinds of situations. It appears, not only from the perspective of the ICRC, that a complete reinvention or revision of international humanitarian law is neither practicable nor 97

Article 48, 51 and 52 AP I. Article 3 (1) (b) common to the four Geneva Conventions; Article 34 Geneva Convention IV; Article 75 (2) (c) AP I; Article 4 (2) (c) AP II. 99 For more details see Lavoyer (note 55), 43. 100 Pfanner (note 56), 165, rightly stated that “[t]he scope of application of international humanitarian law should not be overstretched … On the other hand, international humanitarian law continues to offer suitable answers to most international and internal armed conflicts, which still account for the majority of wars today.” 101 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19), 6. 98

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desirable, since “[t]hroughout its history, IHL has proven adaptable to new types of armed conflict.”102 Any change of international humanitarian law should be based on the existing standards, and one should be aware that the present regime has developed over time and has proven workable and effective in many situations. Undermining a firm body of law which has proven to stand the test of time should be avoided. Nevertheless, the ICRC and other international humanitarian law experts are well aware that the questions surrounding the “War against Terror” are difficult and that we all must constantly check whether the present legal regime is adequately dealing with the situations we encounter in armed conflict.

C. Conclusion Hopefully this article has sufficiently shown that existing rules of international humanitarian law already offer adequate solutions for most of the challenges presented by today’s armed conflicts, be they international or non-international. Of course, history has proven that every new conflict also brings new challenges to the existing legal regime of the law of armed conflict. The ICRC, as the guardian and promoter of international humanitarian law, is fully aware of this tendency and is therefore always ready to examine how current questions or problems in the application of international humanitarian law can be solved, including the challenges with regard to the so-called “War against Terror.”103 In this context, it seems appropriate to close this examination with a quotation from the 2003 ICRC Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: [I]international humanitarian law is an edifice, based on age-old experience, which is designed to balance the competing consideration of humanity and military necessity. In the ICRC’s view this body of law continues, on the whole, to adequately deal with today’s conflict environment. International humanitarian law has proven to be flexible in the past and will further evolve taking into account the new realities of warfare. The ICRC’s role in that process will, as always, be to ensure that developments in international humanitarian law and its practical application preserve existing standards on the protection of persons. To the maximum extent possible, the ICRC will continue to work to improve those protections.104

This shows that the ICRC is taking its role very seriously and will continue to take on any challenge with regard to adapting international humanitarian law towards new developments in international politics and society. 102

Ibid., 10. Lavoyer (note 55), 36. 104 ICRC, Report, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (note 19), 26. 103

The ICRC’s Compilation of the Customary Rules of Humanitarian Law By Walter Kälin*

A. The Study In 1995, the International Committee of the Red Cross (ICRC) was invited to “prepare, with the assistance of experts in international humanitarian law representing various geographical regions and different legal systems, and in consultation with experts from governments and international organizations, a report on customary rules of international humanitarian law applicable in international and noninternational armed conflicts […].”1 The outcome, the Study on Customary International Humanitarian Law (hereinafter: the Study), was published ten years later in 2005.2 It contains 161 rules of international humanitarian law of customary nature that were identified by a team of experts researching national sources in 50 countries, international sources (i.e. practice developed within the framework of international and regional organizations and international judicial bodies) and the archives of the ICRC.3 This body of rules covers the fundamental principles of international humanitarian law, containing rules on specifically protected persons and objects, including medical personnel, humanitarian relief workers or peacekeepers; rules on specific methods of warfare and types of weapons; on the treatment of civilians and persons hors de combat; and on the implementation of international humanitarian law. * I am grateful to Ms Nina Schrepfer, MLaw, for her valuable assistance in preparing this comment. 1 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995: Recommendations, Recommendation II, International Review of the Red Cross (IRRC) 35 (1995), 34, endorsed by Resolution I, para. 4, of the 26th Conference of the Red Cross and Red Crescent, IRRC 36 (1996), 59. 2 Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, volume I: Rules, and volume II (Part 1 and 2): Practice, 2005. 3 On the organization of the research for the Study see Jean-Marie Henckaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, IRRC 87 (2005), 175–212 (184–186).

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The progress in treaty-making in the area of international humanitarian law since the adoption of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field is remarkable and the process of standard-setting is still continuing. The quasi universal ratification of the four 1949 Geneva Conventions highlights the significance of treaties in this branch of public international law. Nevertheless, customary international humanitarian law remains important in situations of armed conflict where affected states are not party to the relevant treaties including Additional Protocol I4 and Additional Protocol II.5 While the two Additional Protocols have been ratified by more than 160 states, several countries involved in or affected by armed conflicts have not. More importantly, treaty law provides only a small number6 of not very detailed provisions applicable to internal armed conflict that are often insufficiently addressing the protection needs of persons affected by such conflicts.7 But if treaty law does not provide appropriate provisions, this does not mean that no rules for such settings exist.8 The increasing number of internal armed conflicts after the end of the cold war and the lack of an appropriate codification of customary law in this respect highlighted the need for a comprehensive identification of existing rules of customary international humanitarian law. The Study can thus be said to have primarily a gap-filling function.9 In addition, its rules and the extensive analysis of state practice it provides have value with regard to the interpretation and clarification of treaty obligations. To determine whether a norm is actually a rule of customary law, i.e. based on “a general practice accepted as law,”10 the Study took the traditional approach of looking for the two elements of state practice and opinio juris.11 Regarding state 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I), 8 June 1977. 5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 8 June 1977. 6 Compare Article 3 common to the four 1949 Geneva Conventions and the 15 substantive Articles of AP II with the hundreds of Articles in the four Geneva Conventions and the more than 80 substantive provisions of AP I. 7 Jakob Kellenberger, Foreword, in: Henckaerts/Doswald-Beck (note 3), volume I, x; see also Jean-Marie Henckaerts, The ICRC Study on Customary International Humanitarian Law – An Assessment, in: Larry Maybee/Benarji Chakka (eds.), Custom as a Source of International Humanitarian Law, 2006, 43–52 (45–46). 8 Henckaerts, in: Maybee/Chakka (note 7), 45. 9 Henckaerts (note 3), 177–178. 10 Article 38(1)(b) Statute of the International Court of Justice. 11 Henckaerts (note 3), 178–184, with reference to the North Sea Continental Shelf cases, ICJ Reports 1969, 3; see also Theodor Meron, Revival of Customary Humanitarian

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practice, the authors of the study relied on behavior in combat operations, documents emanating from the executive, legislative and judicial branches of states including, in particular, military manuals, as well as on the positions of states expressed during negotiations and the adoption of resolutions of international organizations or conferences.12 The number of ratifications of particular treaties, the interpretation and implementation of particular provisions by states, as well as reservations and declarations made at the time of ratification of treaties were also taken into account as elements of relevant state practice.13 Decisions by international courts were considered due to their importance in recording existing or contributing to the emergence of new rules of customary law, although it was acknowledged that they do not constitute state practice.14 Practice of armed opposition groups, however, was not relied on.15 The authors of the Study accepted that according to the International Court of Justice a rule contained in a treaty cannot assume customary nature unless the relevant state practice is virtually uniform, extensive and representative16 and they assessed state practice accordingly.17 As to the opinio juris, it was sought to identify it as an element separate from state practice, but where the latter was dense enough, the conviction that a particular rule is legally binding was deemed to flow directly from the state practice.18

B. The Critique In October 2005, Theodor Meron wrote: “[…] some critics of the ICRC study might argue that while traditional in methodology, the study was too progressive in interpreting practice and thus in determining black-letter rules.”19 On 3 November 2006, a letter signed by the Legal Advisor of the US Department of State and the General Counsel of the Department of Defense and addressed to Jakob Kellenberger, the President of the International Committee of the Red Cross, (hereinafLaw, American Journal of International Law (AJIL), 99 (2005), 833–834, on the traditional approach. 12 Henckaerts (note 3), 179; on the relevance of UN General Assembly resolutions for the development of customary law, see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 254–255. 13 Henckaerts (note 3), 182–184. 14 Ibid., 179. 15 Ibid., 179–180. 16 North Sea Continental Shelf (note 11), paras. 72–74. 17 Henckaerts (note 3), 180–181. 18 Ibid., 182. 19 Meron (note 11), 834.

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ter: the letter) was dispatched from Washington to Geneva. Commenting on the Study, the letter stated that the USA was “concerned about the methodology used to ascertain rules and about whether the authors have proffered sufficient facts and evidence to support those rules. Accordingly, the United States is not in a position to accept without further analysis the Study’s conclusions that particular rules related to the laws and customs of war reflect customary international law.”20 A close reading of the letter reveals that what Meron predicted became true. The US concerns about the methodology used did not relate to the traditional approach as such, but the way the authors of the Study applied it. As others before it, the ICRC had to learn that the identification, restatement and codification of customary international law is not without risks. The proposition that a given rule may be binding on the basis of custom may be rejected by states with the argument that their practice, while consistent with the rule, is based on the principle of pacta sunt servanda or reasons of expediency but not supported by an opinio juris. Thus, the letter stressed that “the United States long has stated that it will apply the rules in its [military] manuals whether the conflict is characterized as international or non-international, but this clearly is not intended to indicate that it is bound to do so as a matter of law in non-international conflicts.”21 It continued to say that “a more rigorous approach to establishing opinio juris is required,” supported “positive evidence, beyond mere recitations of existing treaty obligations or statements that as easily may reflect policy considerations as legal considerations, that States consider themselves legally obligated to follow the courses of action reflected in the rules.”22 States may also argue that state practice in a given area, although existing, is not sufficient and dense enough to establish custom. Again, the letter provides ample material for this kind of argumentation. These arguments should not be dismissed easily despite the fact that one should expect that a country like the US with its incomplete record of ratifying treaties of international humanitarian law and quite frequent involvement in military activities abroad may have clear interests not to be bound by rules it has not explicitly accepted by formal adherence of a treaty.23 They should rather be taken as an

20

John B. Bellinger/William J. Haynes, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law, IRRC 89 (2007), 443–471 (444). 21 Ibid., 447. 22 Ibid. 23 Malcom MacLaren/Felix Schwendimann, An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law, German Law Journal 6 (2005), No. 9, 1217–1242 (1220–1221 and 1232).

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occasion to revisit the question as to how customary law comes into existence, particularly where it develops from treaty law. Focusing on the Geneva branch of international humanitarian law, we find that virtually all states capable of engaging in warfare have ratified the four 1949 Geneva Conventions, thus rendering the question as to their customary law nature in situations of international armed conflict largely academic. The gap-filling nature of customary law becomes relevant in areas of international humanitarian law covered by instruments not universally ratified, in particular the 1977 Additional Protocols as well as with regard to those provisions of the Geneva Conventions that would be suitable for application in internal armed conflict but whose scope of application is limited by virtue of treaty law to conflicts of an international character. In this regard, the letter rejected “the assertion that a significant number of rules contained in the Additional Protocols to the Geneva Conventions have achieved the status of customary international law applicable to all States, including with respect to a significant number of States […] that have declined to become a party to those Protocols” as well as “the assertion that certain rules contained in the Geneva Conventions and the Additional Protocols have become binding as a matter of customary international law in internal armed conflict, notwithstanding the fact that there is little evidence in support of those propositions.”24

C. Assessment The Study with its wealth of material is very strong in showing uniformity of state practice. As the letter indicates, the problem is whether there is sufficient evidence that this practice is supported by a respective opinio juris in all cases. In this regard, one of the authors of the Study, Jean-Marie Henckaerts, has refuted many of the arguments advanced by the United States with convincing reasons.25 As regards the argument that acceptance of resolutions of the UN General Assembly with their non-binding nature cannot be relied on as an expression of opinio juris because governments may support them for reasons of political expediency rather than the belief that they reflect customary law, Henckaerts rightly states that the Study does recognize the non-binding character of such resolutions, but that their probative value depends on the content, degree of acceptance and consistency of state practice in each particular case.26 This argument finds support in the 24

Bellinger/Haynes (note 20), 448. Jean-Marie Henckaerts, Customary International Humanitarian Law – a response to US comments, IRRC 89 (2007), 473–488. 26 Ibid., 478. 25

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practice of the International Court of Justice which stated that General Assembly resolutions “may sometimes have normative value” and “can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.” To this end, the content and the conditions of the adoption of a given resolution are decisive for the establishment of an opinio juris.27 Other aspects of the letter, however, raise important issues pointing to inherent difficulties of identifying customary law. In this short comment, only a few of these problems can be addressed.

I. “Specially Affected” Interests of States To a large extent, the Study builds on existing treaty law as point of departure for the development of customary law. This is in line with the North Sea Continental Shelf case where the International Court of Justice acknowledged that a rule, “while only conventional or contractual in its origin,” may “become binding even for countries which have never, and do not, become parties to” a treaty, provided “the provision concerned [is] of a fundamentally normcreating character such as could be regarded as forming the basis of a general rule of law” and, at the same time, “a very widespread and representative participation in the convention” exists including “States whose interests were specially affected.”28 Thus, not only the quantity of ratifications is relevant but also their quality insofar as specially affected states must be among those accepting a particular treaty provision. These requirements are met by the four Geneva Conventions,29 but not by the Additional Protocols. While ratified by a high number of states (168 in the case of AP I, 164 in the case of AP II30) and thus can be said to have gathered a widespread and generally representative participation, they appear to suffer from the absence of a series of important countries from the list of states parties that in 27

Legality of the Threat or Use of Nuclear Weapons (note 12), 226, para. 70. North Sea Continental Shelf (note 11), paras. 70–73; Henckaerts (note 25), 482, states that these considerations made for the law of the sea cannot be automatically applied to international humanitarian law; while a state may have a coast or not, any state can in principal become involved in an armed conflict. On the approach taken by the Study on the “specially affected States,” see Henckaerts (note 3), 180–181. 29 As of 6 January 2009, the four Geneva Conventions were ratified by 194 states. The United States do not accept that universal ratification of a treaty necessarily means that the respective provisions have attained customary law status with the argument that such ratification could have been motivated not by an opinio juris, but by the belief that, absent the treaty, no rule applied, see Bellinger/Haynes (note 20), 446, at note 6. 30 As of 6 January 2009. 28

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recent times have been involved in armed conflict and, thus, are specially affected by their provisions, like, e.g., Afghanistan, Eritrea, India, Iran, Iraq, Israel, Pakistan, Sri Lanka and the USA.31 On the other hand, states such as Georgia, Lebanon, the Russian Federation or the United Kingdom, all of them states that were lately also involved in armed conflicts of international character, are party to Protocol I; and countries currently affected by non-international armed conflicts, such as the Central African Republic, Chad, Colombia, or the Democratic Republic of the Congo have formally adhered to Protocol II. This raises the question as to whose interests can be considered “specially affected” by international humanitarian law. Countries that are a party to an armed conflict are certainly falling into this category, but as Henckaerts pointed out, “all States have a legal interest in requiring respect for international humanitarian law by other States, even if they are not a party to the conflict”32 and furthermore may become a victim of warfare at some time in their history.33 The authors of the Study concluded that “[a]s a result, the practice of all States must be considered, whether or not they are ‘specially affected’ in the strict sense of that term.”34 This argumentation has its obvious weaknesses. As regards the first argument, the interest that other states respect their obligations exists for every party to any multilateral treaty and their interests therefore cannot be considered to be “specially” affected. Regarding the second argument, a close reading of the North Sea Continental Shelf case may indicate that the Court’s underlying assumption was that a state whose interests are “specially” affected is one that ratifies even though the treaty actually imposes new and burdensome obligations on it.35 In fact, one can hardly speak of an opinio juris as to the binding character of a norm if that norm creates mere entitlements rather than obligations for the ratifying state. The readiness to accept provisions without which the state concerned would be better off may in fact be a strong expression of a feeling of being legally bound. At the same time, the principle of sovereign equality of all states as enshrined in Article 2(1) of the UN Charter demands that the requirement of participation of the specially affected states is understood as a strictly numeric requirement leaving no room for giving more weight to the practice of politically “important” states. 31

Henckaerts, in: Maybee/Chakka (note 7), 45, is aware of this fact but argues that it is therefore important to identify customary law rules in the areas covered by the Protocols. 32 Henckaerts (note 3), 181. 33 Ibid. 34 Ibid. 35 Ratification by states that profited from the obligation to use the equidistance method to delimitate the continental shelf can hardly be seen as an expression of a conviction to be bound by a rule as a matter of law.

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Thus, a country with more experience in warring activities may contribute more to the (non-)emergence of customary law in terms of quantity, but not in terms of quality.36 Therefore, although the participation in the two Additional Protocols can be said to be widespread and representative in general, some doubts remain as to whether their ratification is sufficiently representative – given the absence of a series of states whose interests are particularly affected by relevant rules because they actually engage in belligerent activities within the scope of application of the Protocols – to reach the threshold required by the International Court of Justice.

II. Expansion of the Situational Scope of Application The Study’s assumption that treaty rules applicable in situations of international armed conflict may expand their scope of application to internal armed conflict by virtue of their becoming customary law raises another set of problems. Treaty provisions have their specific scope of application, be it rationae personae, materiae or temporis or regarding the situation (i.e. international or non-international armed conflict) to which they apply. Nothing in the case law of the International Court of Justice suggests that widespread and representative ratification of a treaty creates binding obligations both for parties and non-parties in areas not covered by that treaty’s own scope of application. Thus, in a first step, the elements of state practice and opinio juris must be established for each rule drawn from the four Geneva Conventions and Additional Protocol I; and in a second step it has to be shown that the two constituent elements also exist with regard to non-international armed conflicts. For a variety of reasons, including the fact that interaction between the country concerned and other states in situations of internal armed conflict is rare and the case law on the issue is very limited, it may prove difficult to show that an opinio juris exists with regard to such extension of the scope of application. Despite these difficulties, the Study goes far in merging the two regimes developed for international and non-international armed conflict. In fact, 147 out of the 161 rules are identified to be applicable in any armed conflict, be it international or non-international. The Study thus follows the approach taken in the seminal Tadiü ruling of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia. The Tribunal referred to the sovereignty-driven dichotomy between the two bodies of treaty rules applicable to the two types of conflicts: “If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that

36

Henckaerts (note 25), 481–482, also makes this distinction.

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the dichotomy should gradually lose its weight.”37 The authors expressly refute that the codification of rules was inspired merely by “considerations of convenience, comity or policy”38 and maintain that they strived to establish practice and opinio juris separately for each and every rule and did not integrally infer the existence of a customary rule in international conflict settings to situations of noninternational armed conflict. As a result, some rules remain only applicable to armed conflicts of an international character and others are declared to be limited in their applicability to times of non-international armed conflicts.39 However, while the material compiled by the Study clearly supports the argument that state practice does not distinguish between the two types of armed conflict in many regards, difficulties remain regarding the element of opinio juris.

III. Persistent Objectors The problem with codifying customary law is the occasion such processes provide for states to try to free themselves from obligations by simply declaring that they disagree, i.e. have no opinio juris regarding a specific rule. While customary law, unlike treaties, cannot be denounced with a simple declaration, it could be argued that it would be difficult to regard a rule “as having taken customary status were a State such as the United States opposed to it; the practice concerned could not be said to be representative.”40 However, the requirement that the participation must be widespread and representative, including states whose interests are particularly affected, does not demand that all specially affected states have to agree to the emergence of a rule as customary.41 While the United States certainly is a state whose interests are specially affected – at least with regard to 37

Prosecutor v. Tadiü, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 97; Henckaerts, in: Maybee/Chakka (note 7), 44 and 46, notes that the characterization of conflict, a determining element for the application of the respective body of rules, is not always easy and one of the main impediments to the application of treaty law these days; on this convergence of the two bodies of rules see also Djamchid Momtaz, The ICRC Study on Customary International Humanitarian Law – An Assessment, in: Maybee/Chakka (note 7), 72–76 (72 –73). 38 Henckaerts (note 25), 482. 39 Ibid., 486; rules only arguably applicable in situations of non-international armed conflict are Rules 21, 23, 24, 44, 45, 62, 63 and 82; see also MacLaren/Schwendimann (note 23), 1228–1231. 40 See MacLaren/Schwendimann (note 23), 1232–1232. 41 The Study took the approach that a rule cannot become customary law if specially affected states do not accept the practice, but that unanimity is not required, see Henckaerts (note 3), 181.

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international armed conflicts – the principle of sovereign equality of states would prohibit giving more weight to the voice of one particularly powerful country than to others and its objection alone would not necessarily obstruct the emergence of a rule to customary law. However, a declaration not to have an opinio juris regarding a specific rule may have a particular weight where such disagreement is expressed consistently over time. In fact, a traditional approach to customary international law holds that, while such opposition cannot prevent new customary law coming into being, the persistent objector will not be bound by it. Today, the possibility of being a persistent objector is highly controversial, particularly in the context of international human rights and humanitarian law. While some authors reject the concept of the persistent objector as such42 and others with regard to norms of jus cogens,43 the Study does not take a position on this issue.44 In any case, it would be premature to decide whether a letter that does not affirmatively list unacceptable rules in detail and is furthermore addressed not to states but to the president of an organization with a non-governmental character is just an attempt to leave the door open for further discussions or constitutes the beginning of persistent objection.

D. Opinio Juris: Subjective Will or Objective Element? A further problem with the position expressed in the letter is its implicit understanding that opinio juris requires consent by each and every state and thus is a matter of convergence of tacit agreements of states. To require that each and every state consents to emerging rules of customary law would not only defy its gapfilling nature but turn customary law into the category of treaties concluded by tacit consent, thus abolishing it as a specific source of international law. In this vain, the International Court of Justice stressed that it is not necessary that states adhere “with complete consistency” to a particular rule of customary law. Rather, the Court deemed “it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a

42

See, e.g., the statement by Prof. Jordan Paust, in: Sabrina Balgamwalla, Review of Conference: “The Reaffirmation of Custom as an Important Source of International Humanitarian Law,” Human Rights Brief 13 (2005), No. 2, 13–16 (16), who rejects the concept of the persistent objector with the argument that customary international law is not based on consent, but rather on general patterns of expectations and practice . 43 See MacLaren/Schwendimann (note 23), 1224. 44 Henckaerts (note 3), 181.

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given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.”45 Furthermore, an understanding that opinio juris is a matter of subjective will is highly problematic and, as stressed by Justice Lachs in his famous dissenting opinion in the North Sea Continental Shelf case, relies on unrealistic assumptions not reflecting the complexity of the formative process of customary law and the differing motivations possible at its various stages.46 Rather, as Jörg Paul Müller has pointed out, the existence of an opinio juris can be legitimately assumed where a practice is uniform enough to allow all relevant actors to expect in good faith that a particular state will continue to act in accordance with its practice. Thus, it is the protection of legitimate expectations of the other states by the principle of good faith rather than a hypothetical subjective will of the states that lies at the core of the concept of opinio juris.47 This is why the authors of the study were right to consider opinio juris to be contained in state practice where it was sufficiently dense, not only because it is often difficult to strictly separate practice and opinio juris48 but also for more principled reasons. In fact, a state that contributes to a dense practice in a particular area but then expresses its disagreement to a rule which, inter alia, flows from its own practice, acts in a contradictory manner that, depending on the circumstances, may be incompatible with the principle of good faith in international law.

E. The Way Forward We can conclude that the Study which has been elaborated at the request of states and in consultation with more than 150 governmental and academic experts,49 is indeed seminal and constitutes a major achievement in the history of the ICRC as well as of international humanitarian law. The Study is extremely useful in practice because of the clarity of most of the rules and will greatly facilitate the application of the complex body of law that international humanitarian law has become. It is also an important contribution to the codification and further development of custom in the area of international humanitarian law. 45

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, para. 186 (emphasis added). 46 North Sea Continental Shelf (note 11), Dissenting Opinion of Judge Lachs, 231. 47 Jörg Paul Müller, Vertrauensschutz im Völkerrecht, 1971, 84–85. 48 Henckaerts (note 3), 182. A particular challenge in establishing opinio juris is posed by the fact that international humanitarian law often requires states to abstain from certain acts. 49 Henckaerts (note 25), 473–474.

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To a very large extent, the codified rules can be deemed to be a proper restatement of existing customary law, particularly if one adopts an understanding of opinio juris that puts the emphasis on protecting legitimate expectations created by a dense practice of states rather than on their subjective will to consent. Nevertheless, the opposition of the United States to some rules remains (at least at the time of this writing) a reality. Where to go from here? As relying on customary law alone may create difficulties with at least some of the states that have not ratified the two Additional Protocols, initiatives to convince them to join the list of states parties should continue. In the meantime, evolving judicial practice as well as pronouncements by states and international organizations will test the validity of the proposition that this or that specific rule has (not) become customary law. This should not only provoke states rejecting the customary law character of certain rules to come forward but also motivate those who accept the rule to speak out and reaffirm their opinio juris. Arguably, this would be an important part of their obligation “to ensure respect” for international humanitarian law according to article 1 common to the Four Geneva Conventions and might help to identify those critical of the Study as persistent objectors and not voices attesting to a lack of uniformity of practice or the absence of opinio juris. Beyond that, as consensus on each of the 161 identified rules will probably not be achieved in the near future, debates will continue and discussions be triggered which themselves may contribute to the formation and reaffirmation of customary international humanitarian law. To paraphrase Myres McDougal, international humanitarian law “is not a mere static body of rules but is rather a whole decisionmaking process, a public order which includes a structure of authorized decisionmakers as well as a body of highly flexible, inherited prescriptions. It is in other words, a process of continuous interaction, of continuous demand and response, in which the decision-makers of particular nation States unilaterally put forward claims of the most diverse and conflicting character (…), and in which other decision-makers, external to the demanding State and including both national and international officials, weigh and appraise these competing claims in terms of the interests of the world community and of the rival claimants, and ultimately accept or reject them.”50 We have to be grateful to the International Committee of the Red Cross and the authors of the Study for providing us with an opportunity to revive this process of interaction so necessary to keep international humanitarian law strong and alive.

50 Myres McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, AJIL 49 (1955), 357 –358.

Terrorism and Asymmetric Conflicts – A Role for the Martens Clause? By Hans-Joachim Heintze The Martens Clause plays an outstanding role even today in debates on the application and development of international humanitarian law and its protective function. It is seen in literature as a major contribution to the humanization of the law of war.1 Some authors argue that the Clause adds a dynamic dimension to the static character of the codified law. This is quite surprising as the Clause was already inserted into the Hague Convention II in 1899.2 It is, nevertheless, in no way old-fashioned. On the contrary, it deals with important and persistent issues reflecting fundamental considerations of humanity. Against this background one can consider the reference to the “common interests of humanity” or the “common concerns of mankind” in “modern” legal instruments and doctrines as a means of identification of a broad consensus which could form part of international public policy – an approach typical to the Clause and not at all a new concept.3 Therefore, it seems legitimate to ask what this approach can contribute to the so-called new conflicts, often referred to as “asymmetric wars” due to the fact that the parties involved are no longer exclusively states.

A. The Stages of Development of the Martens Clause The traditional Martens Clause reads as follows: “Until a more complete code of laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.” 1

T. Meron, The Humanization of International Law, 2006, 12. A. Viotti, In search of symbiosis: the Security Council in the humanitarian domain, International Review of the Red Cross (IRRC) 89 (2007), 131, 137. 3 Cf. D. Shelton, Normative Hierarchy in International Law, American Journal of International Law (AJIL) 100 (2006), 291, 323. 2

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The previous and current importance of the Clause results from the fact that it can also be applied to non-state actors such as resistance fighters in occupied territories and other persons taking part in the hostilities.4 The broad acceptance of this approach is reflected by similar clauses in international treaties, for example the Protocol for the Prohibition of Poisonous Gases and Bacteriological Methods of Warfare (1925), the Geneva Conventions (1949) and the Additional Protocol I (1977). Indeed, Art. 1 No. 2 of the Additional Protocol modifies the Clause: “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 the dictates of public conscience.” This improved formula, too, has been recognized by the community of states. This is evidenced by the appearance of this clause in the preamble of the 1980 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. Such acceptance has far-reaching consequences because it precludes the expectation that everything which is not prohibited by an explicit norm is permitted. In contrast, the general rules and principles of international law retain their binding force even in times of armed conflict. This enables the application of the existing rules and principles to new technological developments and “new war”-situations. Thus, it provides a dynamic moment and allows the application of existing norms to meet the challenges of modern armed conflicts. One can argue that the Martens Clause vitiates the well-known saying that the development of international humanitarian law is always one war behind. It articulates universal norms, given the growing list of problems that require a rapid and uniform international response.5 Last but not at least the Clause refers not only to the established sources of international law but also to interpretations resulting therefrom. This aspect is of utmost significance because the codification of all of the diverse problems connected with armed conflicts remains impossible. The Clause can fill such gaps and thereby retain its importance. Yet, the ICJ confirmed that the Martens Clause, with its references to the laws of humanity and the dictates of public conscience, constitutes a rule of customary international law.6 It can been seen as indicative of the general influence of the Clause that it was suggested during the drafting of the ICC 4 H. Strebel, Martens Clause, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 3, 1997, 326. 5 J. I. Charney, Universal International Law, AJIL 87 (1993), 529. 6 T. Meron, The Martens Clause: Principles of Humanity, and Dictates of Public Conscience, AJIL 94 (2000), 78.

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Statute to insert a kind of Martens Clause, referring not directly to the core crimes within the jurisdiction of the ICC, but to a class of crimes which a state must prosecute.7 However, the application of the Clause is also challenging. Humanitarian lawyers are faced with the problem that there is no accepted interpretation of it.8 It is also argued that the status of humanity with respect to international law is ambiguous. In connection with asymmetric wars, it has to be interpreted in terms of people’s well being and security.9

B. Application in Asymmetric Wars In principle all wars are asymmetric because the belligerents are never identical.10 However, in recent literature the term characterizes cases in which governments are engaged in a conflict with a non-governmental armed group. Inequality between the parties and their methods of warfare and weaponry is obvious. Examples of such wars are well known and Darfur is only one of these regrettable situations. In contradiction to such conflicts symmetric wars mean classical armed conflicts between states of roughly equal military strength. In practice one can observe many hybrid situations, i.e. there are mixtures between symmetric and asymmetric wars. Iraq serves as an example of such a conflict. After the occupation of the country in 2003, a non-international armed conflict consisting in militias and other non-state actors against the “Coalition of Willing” started. This resistance was asymmetric because the militias recognized the military superiority of the US forces and avoided open confrontation. Thus, they used “unconventional” means and methods as well as asymmetric tactics. One consequence is the disappearance of the line differentiating between combatants and civilians. This development is accompanied by an increasing privatization of the use of force driven by interests of groups of warlords. These wars take place very often in so-called failed or failing states where public order and state structures have broken down. 7

O. Triffterer/M. Bergsmo, Preamble, in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999, 12 f. 8 R. Ticehurst, The Martens Clause and the Laws of Armed Conflict, IRRC 37 (1997), 125. 9 R. Coupland, Humanity: What it is and how does it influence international law, Revue international de la Croix-Rouge (RICR)/IRRC 83 (2001), 969, 971. 10 T. Pfanner, Asymmetric warfare from the perspective of humanitarian law and humanitarian action, IRRC 87 (2005), 494, 151.

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In particular, this privatization of war makes the application of the Martens Clause complicated. These wars aim not at securing military victory but rather they serve the economic interests of the warlords. Horrific acts are common and, therefore, it seems nearly impossible to claim that warlords are obliged to take into consideration “common interests of humanity” or the “common concerns of mankind.”

C. Application of the Martens Clause in the “War on Terror” One can have some doubts that the “War on Terror” can be considered as an armed conflict in which international humanitarian law applies. However, some authors and the ICRC tend to split this “War” into “components.”11 They argue that solely the armed conflicts in Iraq and Afghanistan fall under the scope of international humanitarian law because they meet the threshold of the definition of war. Other military activities against terrorists are not covered by these regulations. In contrast, the US government insists that the US is engaged in an international armed conflict with the al Qaeda terrorist organization. The government has resorted to “a rather innovative argument, claiming that there are some international armed conflicts which are beyond the material scope of the Geneva Conventions.”12 The administration adopted the view that nothing in the Geneva Conventions prohibits a belligerent party from applying the law of war to a conflict to which the Convention does not apply.13 As an explanation for this quite unique interpretation, the US referred to Art. 142 No. 3 of Geneva Convention III, which contains the Martens Clause. Such an interpretation gives rise to the practice that the Martens Clause is frequently applied in cases when there is no evidence for the existence of a rule of customary international law. However, states usually apply the Clause for humanitarian purposes. In this case, however, it serves other (inhuman) goals. Following this argumentation to its logical conclusion it would seem that there are armed conflicts which are governed by the Geneva Conventions but not regulated by it. The reason for this strange interpretation is to make legal the torture of suspected terrorists in order to obtain information. This position was not accepted by the US Supreme Court, which argued that the common Art. 3 of the 11 M. Milanovic, Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case, IRRC 89 (2007), 373, 376. 12 Ibid. 13 http://www.hamdanvrumsfeld.com/petbriefhamdanfinal.pdf (last visited 17 June 2008), 23.

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Geneva Conventions applies.14 Nevertheless, the opinion of the Supreme Courts leaves many questions open. However, doubtless the quotation of the Martens Clause in the context can be considered as “audacity.”15 Concerning terrorists, it seems impossible to apply the Martens Clause for many reasons. First, one cannot call the international struggle against terrorism an armed conflict. Basic preconditions for the application of international humanitarian law, i.e. that the armed conflict takes certain definable forms, that there is a beginning and an end, that there are enemy states and organized parties to the conflict, are not existent.16 The second reason derives from the character of terrorists and their acts on the one hand and the sources of the Martens Clause on the other. These sources are the customs established between civilized nations, the laws of humanity and the requirements of the public conscience. Against this background one can argue that the Clause reflects natural law which is universal and binding to all states and all people. It supports the view that there is not only a positive legal code but also a moral code. However, even among “civilized” states it is difficult to transform broad principles of humanity and dictates of public conscience into law. Power issues and national interests still clash with the ethical normativity of the Martens Clause.17 Taking this reality of power and dominance of national interests involved in armed conflicts into account, “it is a wonder that the Martens Clause has attained such centrality in international discourse and that progress in humanitarian law … has been so significant.”18 Keeping these problems of democratic states in mind, it seems impossible to expect that terrorists can be bound by principles of humanity and public conscience. In contrast, their objective is to spread fear by arbitrary attacks. This makes the application of international humanitarian law as a whole – including the Martens Clause – impossible. This body of law does not provide essential tools for the fight against terrorism.19 Thus, terrorism must be settled by political means; terrorists are criminals without any status in international humanitarian law.

14

http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf (last visited 17 June 2008), 26. 15 Cf. Milanovic (note 11), 377. 16 L. Reydams, A la guerre comme à la guerre: patterns of armed conflict, humanitarian law responses and new challenges, IRRC 88 (2006), 729. 17 Cf. O. Schachter, International Law in Theory and Practice, 1991, 36. 18 Meron (note 6), 89. 19 H.-P. Gasser, Acts of terror, “terrorism” and International humanitarian law, IRRC 84 (2002), 547, 569.

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D. Conclusion The Martens Clause should not play a role in asymmetric wars, as it can, on the one hand, be misused and misinterpreted by governments. The position of the US government on the “War on Terror” is the worst example of a misuse of this nature. But it proves that certain administrations are capable of such audacity. On the other hand, the “War on Terror” cannot be considered as an armed conflict, which allows the application of international humanitarian law. Terrorists are not a party to an armed conflict, but rather criminals. It would be naïve to expect that these criminals are bound by principles of humanity and dictates of public conscience.

Nowhere to Go? – The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction By Karin Oellers-Frahm

A. Introduction At a time when one of the “hot topics” of international law is the multiplication of international courts and tribunals, the question of “Nowhere to go?” in the context of international dispute settlement somehow seems, at least at a first glance, surprising. Today the question we would more likely expect is “Where to go?” – that is, what organ to choose for the settlement of a particular legal dispute out of the great number of international courts and tribunals available. As compared to the time of the second Hague Peace Conference, the centennial of which we are marking with this conference, there has, in fact, been an impressive increase in international courts and tribunals. Nonetheless, it is still true today that there is no compulsory jurisdiction in international law comparable to that known in national law. Thus, the central question of this essay is whether the obligation to peacefully settle disputes can only be complied with adequately through compulsory jurisdiction. To answer this question we will examine the status of international dispute settlement today.

B. The Obligation to Settle Disputes Peacefully I. From the Principle to the Obligation to Settle Disputes Peacefully The principle of peaceful settlement of disputes already has a long history in international law; Léon Bourgeois even defined it as the “first law of human society.” Some landmark instruments are the 1928 Briand-Kellogg-Pact1 and the 1919 Cove-

1 Art. I and II of the Briand-Kellogg-Pact; for details cf. C. Wallace, Kellogg-Briand Pact (1928) in: R. Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), vol. iii, 1997, 76.

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nant of the League of Nations.2 But the very first initiative to give general expression to this principle dates back to the First Hague Peace Conference of 1899. Article 1 of the 1899 Convention on the Pacific Settlement of International Disputes states: With a view to obviating, as far as possible, recourse to force in relations between States, the Signatory Powers agree to use their best efforts to ensure the pacific settlement of international differences.

The wording of this article demonstrates that there was not yet an obligation to settle disputes peacefully. Such obligation would have required the correlated introduction of a general ban on the use of force which, at that time, was politically inconceivable. Only after the bitter experiences of two World Wars was any use of force finally outlawed with the entry into force of the UN Charter. Art. 2 (4) of the UN Charter enshrines this obligation, logically implying that any other form of dispute resolution other than peaceful settlement would constitute a violation of Art. 2 (4). Nevertheless, the Charter also explicitly includes the obligation to settle disputes peacefully in a separate provision, Art. 2 (3). Although the prohibition on the use of force and, consequently, the obligation of peaceful settlement of disputes is laid down in the UN Charter – a treaty – it is applicable not only to the member states of the Charter but to all actors in international law because the prohibition on the use of force is a fundamental principle – a peremptory norm – of the world order and must be respected by all.

II. Settlement of Disputes and Maintenance of International Peace The UN Charter, like the Hague Conventions before it, explicitly links peaceful settlement of disputes to the maintenance of international peace and security. This is particularly underlined in the wording of Art. 33 of the UN Charter which refers “to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security …” These terms are not to be understood in a restrictive way, however, namely in the sense that there might be disputes not subject to the duty to settle disputes peacefully. Today, there is no doubt that the peaceful settlement of disputes is a general obligation independent of the importance or the possible consequences of a dispute.3 Moreover, it must be mentioned at the outset that the terms “difference,” “conflict” or “dispute” can be used interchangeably according to the definition given by the PCIJ in the Mavrommatis 2

Art. 12 (1) of the Covenant. Military and Paramilitary Activities in and against Nicaragua, ICJ Reports, 1986, 145; cf. also to the Manila Declaration on the Peaceful Settlement of International Disputes, GA Res. 37/10, 15 November 1982, para. 5. 3

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case.4 They all stand for a “disagreement on a point of law or fact, a conflict of legal views or interests” and thus do not imply a categorical differentiation.

III. Free Choice of Means of Dispute Settlement The obligation to peacefully settle disputes does not imply a particular means of doing so. Art. 33 of the UN Charter, like the Hague Conventions, only sets out the different options without giving preference, let alone mandatory application, to any one of them. These options are informal, non-compulsory procedures such as negotiation, good offices, inquiry commissions, mediation and conciliation, and agreed adjudicatory-legal procedures, namely arbitration and judicial organs.5 From the means of dispute settlement just mentioned only the adjudicatorylegal procedures lead to a binding decision; this does not mean, however, that the diplomatic-political procedures would be less efficient for the settlement of a dispute,6 as the willingness of the states to voluntarily cooperate in finding a solution is what is essential in international dispute settlement. Although the choice of means for the settlement of a concrete dispute is left to the states, they are obliged under the regime of the UN Charter to actively pursue the settlement of the dispute.7 However, they are not – and cannot be – obliged to reach a result. The principle of state sovereignty enshrined in Art. 2 (1) UN Charter, which continues to govern international relations today, excludes compulsory third party involvement in the process of dispute management, thereby jeopardizing successful dispute settlement in the absence of state consent. It may, therefore, seem surprising that the idea of compulsory jurisdiction known in national law made its appearance in international discussion as a corollary to the principle of peaceful settlement of disputes and gained importance with the prohibition of the use of force, despite the fact that international jurisdiction is based on consent. Although judicial settlement of disputes was only one of the alternatives to forceful settlement at the time when the use of force had not yet been prohibited, it was thereafter considered the ideal alternative of the pacific methods 4

PCIJ Series A, No. 2, 11. A. Peters, International Dispute Settlement: A Network of Cooperational Duties, European Journal of International Law ( EJIL) 14 (2003) 1–34, 4. 6 Most disputes are in fact settled by other than judicial means, cf. T. A. Mensah, International Judicial Institutions and the Peaceful Settlement of Disputes, Walther-SchückingKolleg 23, 1998, 28; J. G. Merrills, International Dispute Settlement, 4th ed., 308 et seq. 7 C. Tomuschat, Art. 33, in: B. Simma (ed.), The Charter of the United Nations, A Commentary, 2002, 583–594, MN 16. 5

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of settlement8 because the assumption prevailed that a court of law could “settle” any dispute if enabled to do so. As we simplistically recognize today, it was presupposed that wars are about “disputes.”9

C. Compulsory Jurisdiction I. “Compulsory” Jurisdiction in International Law As a submission to jurisdiction requires consent under international law, it was evident that, in contrast to national compulsory jurisdiction, “compulsory” jurisdiction can only mean the voluntary submission to jurisdiction for all possible existing or future disputes with all possible parties. Since the Hague Peace Conferences the discussion on the peaceful settlement of disputes was accompanied by the goal of having states agree beforehand to submit all disputes with any other state to a judicial organ, because it was already felt at that time that all states bear a certain responsibility for the maintenance of international peace and security.

II. Requirement of a Permanent Judicial Organ But compulsory jurisdiction requires a place to go, namely a permanent, institutionalized court. Such an institution did not exist at that time, with international adjudication being exercised by ad hoc arbitral tribunals, which became functus officio once the award was rendered. This was the hour of birth for the Permanent Court of Arbitration (PCA), which was perceived as the place to go in case of disputes. This Court, however, was , in fact, neither a permanent nor a true court because it did not dispose of a permanent bench of judges, but provided for the establishment of ad hoc tribunals consisting of judges nominated from a list held by the Bureau. The Bureau, with its seat at The Hague, was – and still is – the only permanent organ of the Court. However, it was not these shortcomings of the PCA which caused the failure to introduce compulsory (arbitral) jurisdiction, but rather the reluctance of states to agree to any restriction of their sovereignty necessarily linked to compulsory jurisdiction. This state of affairs has not really changed. Even when a permanent, institutionalized court was established with the PCIJ, and 8

S. Rosenne, The Law and Practice of the International Court of Justice, 4th ed. 2006,

164. 9 R. Jennings, General Introduction, in: A. Zimmermann/C. Tomuschat/K. OellersFrahm (eds.), The Statute of the International Court of Justice, A Commentary, 2006, 3–37, MN 128.

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finally the ICJ, – which remains the only Court open to all states for the settlement of disputes of all kinds, compulsory jurisdiction could not be achieved.

III. Acceptance of Compulsory Jurisdiction What remained of the original goal of general compulsory jurisdiction is what is known as the “optional clause” enshrined in Art. 36 (2) of the Statute of the Court. According to this clause states may, on a voluntary basis, recognize the jurisdiction of the Court as compulsory ipso facto and without special agreement in relation to any other state accepting the same obligation in all legal disputes. As the optional clause is the subject-matter of a special paper prepared by Judge Simma, this is not the place to go into detail on this topic. For my purposes, it is sufficient to look at the use made of that clause, as it mirrors the actual readiness of states to accept compulsory jurisdiction. Only a third of the UN member states and one of the permanent Members of the Security Council10 have made declarations under Art. 36 (2) of the Statute. As Art. 36 (3) allows for reservations with regard to categories of disputes as well as temporal restrictions, most states have made use of this option. However, the number of states that have made declarations without any reservation has increased and now amounts to fifteen, thereby creating a system of compulsory jurisdiction between them.11 Although it is improving, this state of affairs is far from the original hope that a more or less general compulsory jurisdiction would be reached by broad acceptance of this clause. As a first result it must therefore be stated that the “Hague model” of compulsory jurisdiction has failed, a model that is also reflected in the optional clause of the PCIJ and ICJ Statutes and aims at reaching a general agreement to submit all 10

The United Kingdom of Great Britain and Northern Ireland has made a declaration in 1969 which was amended in 2004. According to this declaration only disputes arising after 1 January 1974 fall under the jurisdiction of the Court with the exception of disputes for which another method of peaceful settlement has been agreed as well as for disputes with the government of any other country which is or has been a Member of the Commonwealth and finally disputes in respect of a Party which has accepted the jurisdiction of the ICJ only in relation to or for the purpose of that dispute or where the acceptance of the compulsory jurisdiction of the Court was deposited or ratified less then twelve months prior to the application in that dispute. Cf. ICJ Yearbook 2003–2004, 160. 11 These states are: Cameroon, Commonwealth of Dominica, Costa Rica, Democratic Republic of the Congo, Denmark, Dominican Republic, Georgia, Guinea-Bissau, Haiti, Liechtenstein, Panama, Switzerland, Togo, Uganda and Uruguay. C. Tomuschat, Art. 36, in: Zimmermann/Tomuschat/Oellers-Frahm (note 9), 589–657, MN 63.

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disputes not settled by other means to the compulsory jurisdiction of one (institutionalized) court, today the ICJ. This may be lamented as falling short of the ambitious aims pursued since the Hague Conventions, however this should not be seen as an overall failure of the obligation to settle disputes peacefully or as the end of the idea of compulsory jurisdiction. To the contrary, compulsory jurisdiction experienced impressive development, although not as the general compulsory jurisdiction comprising all international disputes originally aimed at, but instead, through an increasing number of sub-systems which were established in the context of the development of the international legal system in the last 50–60 years.12

D. Compulsory Jurisdiction in Special Regimes The reason for this significant development of international law is well known. When the idea of compulsory international jurisdiction was raised at the end of the 19th century, international law was the law governing relations between states. It was characterized by a competitive approach, as disputes at that time were primarily power-oriented and not rule-oriented. This means that disputes were about individual state interests, such as boundaries and title to sovereignty, and not about values common to international society. The development of new technologies and the increase in living standards made previously independent states dependent on the outside world for fulfilling their task of guaranteeing security, justice, liberty and wealth to their citizens. The competitive era of international law has developed in the direction of cooperation and coordination, and today, even constitutionalization.13 The catch-word for this development is “interdependence,”14 which is linked to a new approach in international relations due to the growing conviction that there are “community interests”15 in existence, which are deemed worthy of special protection, such as the environment, energy, raw materials, finance and trade. Human rights and crimes against humanity are also no longer merely the concern of individual states, but have become the concern of the international community as a whole. The same is true for terrorism, international organized crime, drug and arms trafficking. 12

For an overview see the compilation by K. Oellers-Frahm/A. Zimmermann, Dispute Settlement in Public International Law, Texts and Materials, 2001. 13 B. Simma, From Bilateralism to Community Interest in International Law, Recueil des Cours (RdC) 250 (1994, VI), 217–376; F. Orrego Vicuna/C. Pinto, Peaceful Settlement of Disputes, Prospects for the 21st Century, in: F. Karlshoven (ed.), The Centennial of the First International Peace Conference, Reports & Conclusions, 2000, 261–416. 14 M. M. T. A. Brus, Third Party Dispute Settlement in an Interdependent World, 1995, 9. 15 Simma (note 13), 233.

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I. The Creation of Special Regimes Thus, there was a large variety of relationships which called for – and still call for – international regulation, and which led to an expansion of the international normative order into fields which had traditionally been considered domestic affairs.16 The conviction that there are common values which the entirety of international society has a vested interest in preserving has enhanced the readiness of states to agree to international regulation in those fields by creating international organizations devoted to a particular subject-matter on a regional or universal level or by establishing specific treaty regimes. As it was also clear that such regimes can only work if compliance with their rules is guaranteed, the need was felt to incorporate dispute settlement procedures in such legal regimes which provide, at least ultimately, for compulsory recourse to adjudication.17 Furthermore, acceptance of compulsory jurisdiction in most of these regimes was directly linked to membership and did not require an additional act of agreement, so that all members of the regime were submitted to adjudication. Of course, compulsory jurisdiction in special regimes is restricted to the disputes arising within the regimes and between the members of that regime. The number of special regimes is so impressive that reference can only be made briefly to the most prominent examples in this context, namely the regional economic integration organizations such as the European Union in Europe, which disposes of a dispute settlement system coming close to that of national states.18 Developments in a similar direction have taken place in the Andean Pact (ALADI) and Mercosur in Latin America,19 as well as ECOWAS in the African region.20 Compulsory jurisdiction has also been accepted in the framework of the protection of human rights, in particular in the European system, where admission to the European Convention on Human Rights implies submission to the European Court of

16 W. G. Friedman, The Changing Structure of International Law, 1964; M. Koskeniemmi, The Gentle Civilizer of Nations, 2001. 17 Brus (note 14), 44. 18 A. Albors-Llorans, Changes in the jurisdiction of the European Court of Justice under the Treaty of Amsterdam, Common Market Law Review 35 (1998), 1273–1294; A. Rosas, International Dispute Settlement: EU Practices and Procedures, German Yearbook of International Law (GYIL), 46 (2004), 284–322. 19 Cf. J. Lehmann, Wirtschaftsintegration und Streitbeilegung außerhalb Europas, 2004, 87–204; V. Bulmer-Thomas (ed.), Regional Integration in Latin America and the Caribbean, 2001. 20 Lehmann (note 19), 204–290; P. Pennetta (ed.), Le organizzazioni economiche regionali africane, 1998; P. Pennetta (ed.), Le organizzazioni dell’Africa Australe, 1995.

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Human Rights.21 Similar systems exist in the American22 and African23 framework. Mention should also be made of the GATT/WTO system,24 as well as the dispute settlement procedures provided for in the Law of the Sea Convention25 and most of the more recent international environmental agreements,26 as well as the efforts for introducing compulsory jurisdiction for the settlement of disputes in international space law,27 and various other fields which have meanwhile become part of international law. This overview clearly shows growing recognition in the international society that the rule of law requires means for its implementation and that globalization can only work within an effective legal framework.

II. Special Courts for Special Regimes There are several reasons for the fact that special regimes have established special courts instead of using the ICJ. On the one hand it is evident that one court 21 P. L. MacKaskle, The European Court on Human Rights: What it is, how it works, and its Future, University of San Francisco Law Review 40 (2005), 1–84; T. A. Christou, The European Court on Human Rights, 2005. 22 J. M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2003; T. Buergenthal/D. Shelton, Protecting Human Rights in the Americas, 4th ed. 1995. 23 A. O’Shea, A Critical Reflection on the provided African Court on Human and Peoples’ Rights, African Human Rights Law Journal 1 (2001), 285–298; A. P. van der Mei, The New African Court on Human and Peoples’ Rights, Leiden Journal of International Law 18 (2005), 113–129. 24 R. Wolfrum/P.-T. Stoll/K. Kaiser (eds.), WTO-Institutions and Dispute Settlement, 2006; E.-U. Petersmann, The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System Since 1948, Common Market Law Review 33 (1994), 1157–1244. 25 A. O. Adede, The System for the Settlement of Disputes Under the United Nations Convention on the Law of the Sea. A Drafting History and a Commentary, 1987; N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 2005. 26 As examples reference shall be made to the 1991 Convention on Environmental Impact Assessment in a Transboundary Context; the 1992 Convention on Biological Diversity; furthermore a series of dispute settlement protocols to already existing Conventions has to be mentioned such as the 1994 Oslo Protocol on Further Reduction of Sulpher Emissions, the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty (cf. R. Wolfrum, The Convention on the Regulation of Antarctic Mineral resource Activities, An Attempt to Break New Ground, 1991). For more details cf. G. M. Goh, Dispute Settlement in International Space Law, 2007, 194 et seq., and Brus (note 14), 37 et seq. 27 Cf. Goh (note 26).

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alone would not be able to cope with the case-load already overburdening some of these newly created bodies. What is more important, however, is the fact that the establishment of special courts or tribunals brought with it the advantage of flexibility, which allowed these systems to be shaped according to the special needs of the subject-matter at stake – a flexibility that the ICJ is unable to offer. Only states are admitted as parties before the ICJ, for example, only states are admitted as parties, a fact that is generally regarded today as a juridical anachronism,28 but that cannot easily be changed due to the hurdles of a Charter amendment. Since new actors, namely international and non-governmental organizations, as well as individuals, are playing an increasing role in international law, the accountability of these actors has become indispensable for satisfying the obligation of peaceful settlement of disputes, a fact which has consequently required the creation of new international courts and tribunals or the adaptation of the old ones. Among the “traditional” courts and tribunals, only the PCA has successfully adapted its procedures to the new challenges and developments of international law by admitting actors other than states as parties. This extension of ius standi led to an impressive revival of arbitrations under the auspices of the PCA since the 1990s.29 Whether such an adaptation could also work for the ICJ is more than questionable; it would, at very least, require a correlated adaptation of the organization and resources of the Court in order to cope with the probable flow of cases. In any case, the development, and even proliferation, of new permanent international courts and tribunals is certainly to be welcomed in the context of peaceful settlement of disputes. However, the fact that this development is taking place without an overall plan and structure concerning the relationship between these

28 I. Seidl-Hohenveldern, Access of International Organizations to the International Court of Justice, in: A. S. Muller/D. Raic/J. M. Thuransky, The International Court of Justice: Its Future Role after Fifty Years, 1997, 189–203; M. W. Janis, Individuals and the International Court, ibid., 204–216; P. C. Szasz, Granting International Organizations Ius Standi in the International Court of Justice, ibid. 168–188; J. Sztucki, International Organizations as Parties to Contentious Proceedings Before the International Court of Justice, ibid., 141–167; D. Shelton, The Participation of Non-Governmental Organizations in International Judicial Proceedings, AJIL 88 (1994), 611–642. 29 At the moment of writing, 18 cases are conducted under the PCA auspices, four of which are UNCLOS arbitrations administered by the PCA, including the Mox Plant case, the case Malaysia/Singapore as well as the Barbados/Trinidad and Tobago and Guyana/ Suriname maritime boundary disputes. Other cases are the Saluka Investments B. V. v. Czech Republic investment dispute, the OSPAR arbitration between Ireland and the UK and the Iron Rhine arbitration between Belgium and the Netherlands. The Eurotunnel arbitration was decided on 30 January 2007. For details cf. the homepage of the Court at http:// www.pca-cpa.org.

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tribunals causes problems with regard to the integrity and security of international law – a topic that cannot be considered in more detail here.30

III. Interim Conclusions The above considerations lead to the following tentative conclusions: 1. Compulsory jurisdiction is not absent in international law, although it presents itself in a different manner than that originally aimed at. There is no “general, all-comprising” compulsory jurisdiction concentrated in one court competent to decide all disputes if states are unable to find a solution by other means. 2. The ICJ, which was conceived as “the” judicial organ meeting the needs of compulsory jurisdiction, would, in its present form, be unable to settle all possible international disputes, as these are, to a very large degree, no longer disputes only between states. Furthermore, the inclusion of a growing breadth of subject matter into the body of international law increases the potential of international disputes in a way that would clearly overcharge one single court – not only with a view to the overall case load, but also with a view to the special knowledge necessary. 3. Compulsory jurisdiction in the framework of special regimes thus constitutes the ideal implementation of the obligation to settle disputes peacefully in that it provides an inescapable mechanism leading to a binding decision for a continuously growing number of possible international disputes, accompanied moreover increasingly by an implementation/enforcement mechanism. However, it must be acknowledged that it also implies the danger of fragmentation of international law and collision of international court decisions which urgently call for a solution.

30

On this topic cf. K. Oellers-Frahm, Multiplication of International Courts and Tribunals and Conflicting Jurisdiction – Problems and possible Solutions, Max-Planck-Yearbook of United Nations Law (Max-Planck UNYB) 5 (2001), 67–104; R. Higgins, The ICJ, the ECJ, and the integrity of international law, The International and Comparative Law Quarterly 52 (2003), 1–12; J. Finke, Die Parallelität internationaler Streitbeilegungsmechanismen – Untersuchung der aus der Stärkung der internationalen Gerichtsbarkeit resultierenden Konflikte, 2004; S. Oeter, The International Legal Order and its Judicial Function: Is there an International Community – despite the Fragmentation of Judicial Dispute Settlement?, in: P. M. Dupuy et al. (ed.), Common Values in International Law. Essays in Honour of Christian Tomuschat, 2006, 583–599.

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E. Settlement of Political Disputes The fact that compulsory jurisdiction has found increasing acceptance in international law raises the question why it is still not generally accepted. Or, more precisely, what kinds of disputes are states not – or in an optimistic view – not yet ready to submit to compulsory jurisdiction and what are the reasons for this state of affairs?

I. The Different Categories of Disputes and Their Justiciability As demonstrated earlier, the readiness of states to accept compulsory jurisdiction relates in particular to the preservation of common values provided for in special regimes set up with the participation of the interested states. Thus, there is not only certainty as to the applicable law and the potential parties to a dispute, but the functioning of the system is moreover equally beneficial to all participants.31 In other words: these are not purely bilateral disputes but “multilateralized” or “internationalized” disputes.32

1. Maintenance of Peace and Settlement of Disputes In this context it should be recalled that the idea of enhancing the peaceful settlement of disputes was strongly related to the prevention of the use of force. Art. 1 of the Hague Conventions on the Peaceful Settlement of Disputes, Art. 2 (3) and Art. 33 (1) of the Charter of the UN explicitly refer to disputes likely to endanger international peace and security. Of course, theoretically, each dispute between states could lead to the use of force,33 so that the obligation to settle disputes peacefully is valid for all kinds of international disputes. But the function of the European Court of Justice or WTO panels, for example, will not generally be associated with the idea of peaceful settlement of disputes, conceived as an alternative to the use of force. Disputes addressed in these and other special regimes are generally circum31

Brus (note 14), 231; G. Guillaume, La politique des états à l’égard du règlement par des tierces parties, in: Institute of International Public Law and International Relations of Thessaloniki (ed.), vol. XVIII, Pacific Settlement of Disputes (Diplomatic, Judicial, Political, etc.), 1991, 347–376 (351 et seq., 354 et seq.). 32 J. Crawford, The International Court of Justice, Judicial Administration and the Rule of Law, in: D. W. Bowett et al., The International Court of Justice. Process, Practice and Procedure, 1997, 112–123 (116). 33 J.-P. Quéneudec, Art. 33, in: J.-P. Cot/A. Pellet (eds.), Commentaire de la Charte des Nations Unies, 1991, 572; Guillaume (note 31), 362.

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scribed as “minor disputes,” which means, as a rule, that they are not of a kind as to endanger international peace. The disputes that would be likely to endanger peace and security are of a different nature; they can be characterized as power-oriented, i.e. disputes that concern sensitive, highly political issues affecting the sovereignty of the state – the modern version of “vital interests and questions of State honor.” These disputes are generally classified as “political disputes.”34

2. Justiciability of Political Disputes Political disputes have always played a special role in the discussion on compulsory jurisdiction, in particular, because of doubts concerning their justiciability. Already at the First Hague Peace Conference a reservation to the projected compulsory jurisdiction was envisaged with regard to disputes involving “vital interests” or “questions of honor” of states.35 That there may be a distinction between political and legal disputes is also reflected in Art. 36 (3) of the UN Charter, which explicitly recommends adjudication through the ICJ for “legal” disputes. Art. 36 (2) ICJ Statute, the provision that opens the way for optional compulsory jurisdiction, also refers only to “legal” disputes. This wording strengthened the view that there may be disputes that are not suitable for adjudication – a view that is no longer supported in this general form because “the notion of what is political and legal do not form an antithetical pair.”36 Today the view prevails that the reference to “legal disputes” in Art. 36 (3) of the UN Charter and Art. 36 (2) of the ICJ Statute is not of decisive significance37 because interstate political disputes nearly always also contain legal components which can be decided by adjudication – a statement that was thoroughly discussed by the ICJ in the Tehran Hostages case

34 Malcolm N. Shaw, Peaceful resolution of “political disputes”: the desirable parameters of ICJ jurisdiction, in: J. Dahlitz (ed.), Peaceful resolution of major international disputes, 1999, 49–75. 35 J. Delbrück, Internationale Gerichtsbarkeit – Zur Geschichte ihrer Entstehung und der Haltung Deutschlands, in: A. Zimmermann (Hrsg.) Deutschland und die internationale Gerichtsbarkeit, 2004, 13–28 (24). 36 R. Y. Jennings, The Role of the International Court of Justice, British Yearbook of International Law (BYIL) 68 (1997), 1–63 (49). 37 H. Lauterpacht, La théorie des différends non justiciables en droit international, RdC 1930–IV, 499–653; E. Gordon, Legal Disputes under Art. 36 (2) of the Statute, in: L. F. Damrosch (ed.), The International Court at a Crossroads, 1987, 183–222.

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and the Nicaragua case,38 and that has, since then, continually been confirmed by the jurisprudence of the Court.39

II. The “Settlement” of Disputes 1. The Justiciability of Disputes The fact that, as a rule, there are no disputes that by nature are not suitable for adjudication is a significant enhancement of the peaceful settlement of disputes. Nonetheless, this does not solve all problems which the peaceful settlement of disputes raises in international law. The question at stake is more complicated because the peaceful settlement of disputes is made up of two components: the “peacefulness” of the procedure, on the one hand, which is, in fact, best guaranteed by adjudication, and the effective “settlement” of the dispute on the other. This latter aspect cannot be reduced simply to the justiciability of disputes, because adjudication is not synonymous with effective settlement of disputes. As in political disputes the Court only decides on the legal aspects, leaving aside the political implications. A decision thus “reduced” to only one aspect of the dispute does not necessarily lead to the final settlement of the overall conflict.40 The problem with compulsory jurisdiction in politically sensitive disputes is therefore not that of justiciability – nearly all disputes have at least a justiciable core41 – but 38

United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, 20; Military and Paramilitary Activities in and Against Nicaragua, ICJ Reports 1984, 439 et seq.; Tomuschat (note 11), MN 14. 39 In the view of the author there is only one case which may be regarded as a “political dispute,” namely the Case of Brcko which arose in the context of the Dayton Peace Agreement of 1995 which terminated the armed conflict in the former Yugoslavia. As agreement on the attribution of the area of Brcko to one of the entities composing the new state of Bosnia and Herzegovina, namely the Republika Srpska and the Federation of Bosnia and Herzegovina, could not be reached in the Agreement, the question was left to binding arbitration. The arbitral tribunal was, however, not able to fulfill its task, namely to draw the borderline, but decided that the area would be placed under international administration. For more details cf. K. Oellers-Frahm, Restructuring Bosnia-Herzegovina: A Model with Pit-Falls, Max-Planck UNYB 9 (2005), 179–224, 214. 40 D. P. Forsythe, The International Court of Justice at Fifty, in: A. S. Muller et al. (eds.), International Court of Justice: Its Future Role After Fifty Years, 1997, 385–405 (397); Jennings (note 36), 49. 41 As a recent example of a case with intricate political implications resulting out of aspects of use of force and questions of state succession and imputability cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of the ICJ of 26 February 2007.

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that of effective dispute settlement, which is required for the maintenance or restoration of peace and security.

2. Compliance with Judgments The statement that adjudication is not synonymous with the effective settlement of a dispute leads directly to one more particularity which is inherent in international adjudication, and is particularly relevant with regard to “political disputes,” namely the question of implementation and enforcement. Although states or other parties to an international dispute settled by a binding decision are obliged to comply with the judgment in good faith, it is left to their initiative to take the necessary action. If they fail to do so, compliance with the judgment is called into question. As in international law an organ empowered to execute judgments or to enforce compliance with judgments does not exist. The absence of good-will of the parties may in fact prevent the effective settlement of the dispute. It is true and has even been generally regarded as an advantage of using the ICJ that, according to Art. 94 (2) of the Charter, the Security Council can be consulted in order to reach compliance with a judgment of the Court. The Security Council is not, however, the executive organ of the Court.42 It decides independently and according to its own parameters whether or not to take measures to ensure compliance with a judgment.43 Furthermore, the rare practice of recourse to Art. 94 (2) of the Charter highlights the systemic shortcomings of this provision. Decisions of the Security Council under Art. 94 (2) of the Charter follow the usual voting procedure requiring that none of the five permanent members make use of its veto power because such decisions do not concern procedural matters. This is of particular relevance when compliance is requested with regard to a judgment obtained against one of the veto powers as is demonstrated by the Nicaragua case. When Nicaragua seized the Security Council in order to reach compliance with the judgment obtained against the United States in 1986, it was absolutely clear that each measure envis-

42

A. Pellet, Le glaive et la balance, Remarques sur le rôle de la C. I. J. en matière de maintien de la paix et de la sécurité internationales, in: Y. Dinstein (ed.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, 1989, 539–566 (566). 43 K. Oellers-Frahm, Souveräne Gleichheit der Staaten in der internationalen gerichtlichen Streitbeilegung? Überlegungen zu Art. 94 Abs. 2 und Art. 27 UN-Charta, in: J. A. Frowein et al. (Hrsg.), Verhandeln für den Frieden. Liber Amicorum Tono Eitel, 2003, 169–191.

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aged would be blocked by the veto of the United States.44 Although this case was until now the first and last experience of recourse to Art. 94 (2) of the Charter, it clearly demonstrates that successful of enforcement of a judgment depends largely on the parties involved. Compliance with a judgment requiring a decision of the Security Council on measures to be taken by a veto power or protégé of a veto power will be doomed to failure, while compliance sought against a “minor” state would generally be more promising. This evidently constitutes a situation resulting in an inequality that strongly contrasts with the idea of adjudication which, as was first demonstrated by the Nicaragua case, is the only means for dispute settlement where powerful and less powerful states are placed on equal footing.

III. Use of Force and Settlement of Disputes The idea, dominant since the Hague Peace Conferences, that resort to (the) Court and resort to the use of force are more or less alternative forms of reaction to a given dispute, is naïve. Compulsory jurisdiction is not the panacea for fulfilling the obligation to settle disputes peacefully. It is not a sort of “philosopher’s stone” of international law45 that could provide remedy in any dispute for the reason that “wars are not about disputes.”46 Therefore it must be stated that the interests of judicial settlement of disputes would be best served if we do not expect too much from compulsory jurisdiction, but rather recognize and accept that there are limits to international – and, in particular, compulsory – adjudication. International adjudication, whether compulsory or not, simply cannot settle all international disputes. This does not mean that adjudication, and, in particular, compulsory jurisdiction, would not be the most promising means for the settlement of international disputes, including “political disputes.” Bringing a case before a court or tribunal generally already has a deescalating, “cooling off” effect, leading to an impartial examination of the difference. It may even constitute a useful political means for finding a way out of a dilemma without losing face, and it may result in a more realistic appreciation of the situation and thus enhance the readiness to find an mutually agreeable solution. It will not, however, inevitably lead to the settlement of the dispute as such.

44

Cf. Resolution of the Security Council of 28 October 1986, Doc. S/18428, which was vetoed by the United States; see also General Assembly Resolutions A/RES/41/31 of 3 November 1986, A/RES/42/18 of 12 November 1987 and A/RES/44/217 of 22 December 1989. For more details see Oellers-Frahm (note 43), 178. 45 Jennings (note 36), 55. 46 Jennings (note 9), MN 128.

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Cases such as Tehran Hostages and Nicaragua demonstrate that the involvement of the Court was a decisive step for the final settlement of the dispute. The judgment of the Court, although not implemented as such, at least had some beneficial effect, for it seems evident that the judgments were a significant precondition for the agreed settlement reached in both cases. There is even evidence that readiness to reach a solution may be enhanced by the fact alone that the way to adjudication is open. As an example, reference may be made to the Case concerning the Aerial Incident of 3 July 198847 between Iran and the United States where the imminent confirmation of the jurisdiction of the Court led to “an agreement in full and final settlement of all disputes, differences, claims, counterclaims and matters directly or indirectly raised by or capable of arising out of, or directly or indirectly related to or connected with, this case.” These examples clearly demonstrate that the involvement of the Court was in fact only one step, albeit a very important one, in the efficient settlement of a broader, political dispute.

F. Where to Go? The recognition that“wars” are generally not about “disputes,” and that there are disputes, even in a developed community governed by the rule of law, that require a decision on the basis of policy and statesmanship rather than a “legal decision,”48 leads us back to our original question in a slightly altered form. Where to go if even compulsory adjudication does not look promising? Are states left alone in precisely those disputes that are most likely to endanger peace and security? The answer to this question is ambiguous. There is a place to go and which is, in principle, more appropriate for the settlement of political disputes than a judicial organ, namely the Security Council, the political organ of the UN. It is the only organ that is empowered to take the necessary measures for maintaining or restoring peace, including forceful measures. Each state can seize the Security Council and because previous agreement is not required, it seems to be the appropriate and most promising place to go, particular when disputes endanger peace and security. But, again, the fact that there is a place to go is no guarantee for the effective settlement of the dispute. The structure and procedure of the Security Council, 47

Case Concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), ICJ Reports 1996, 9. 48 Jennings (note 9), MN 130; R. P. Anand, Effectiveness of International Judicial Procedures in the Settlement of International Disputes, in: The Indian Society of International Law (ed.), International Conference on International Law in the New Millennium: Problems and Challenges Ahead, vol. I, 2001, 123–139 (136 et seq.).

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namely the veto-power of the five permanent members, can prevent the taking of measures necessary for the effective settlement of a dispute, particularly if one of the parties to a conflict is a veto power or is protected by a veto power. The arguments and experience raised in the context of seeking compliance with the judgment in the Nicaragua case are unfortunately equally valid for the involvement of the Security Council as the primary organ for settling disputes endangering peace and security. Even the involvement of a third party empowered to take binding decisions, such as the ICJ, or forcible measures, such as the Security Council, is no guarantee for the settlement of a dispute. Despite this fact, the obligation to settle disputes peacefully remains unaffected; it means only that disputes can remain unsettled. The possibility of a dispute remaining unsettled does not amount to a violation of the obligation to settle disputes peacefully. Only the prohibition of use of force is mandatory – the effective settlement of disputes is not.

G. Concluding Remarks There can be no doubt that compulsory jurisdiction is of utmost importance in any legal system, and therefore also in the international community. The particularities of international law, however, primarily the still dominating principle of state sovereignty, make consent the basic principle of and precondition for international (compulsory) jurisdiction. Such consent will always be difficult to reach where power-related differences are at stake, and even if the involvement of a judicial organ would be mandatory, the settlement of such disputes would not be guaranteed. Effective settlement of international disputes is therefore ultimately dependent on the willingness of the states concerned. Submission to compulsory jurisdiction will be honored in most cases, but in the absence of any cooperation and good-will to peacefully settle the dispute, adjudication alone will not prove an effective means for the settlement of a particular dispute. A positive answer to the question “where to go,” and even the existence of compulsory jurisdiction in international law alone, would not constitute a guarantee for the implementation of the obligation to settle disputes peacefully. What is always essential may be called “ethics of dispute management”; it requires at least a minimum of good-will which is indispensable in the international society of today. In the absence of good-will, international disputes can remain unsettled. As already mentioned, this is not a violation of the international obligation to settle disputes peacefully and is, therefore, acceptable, although not satisfactory, as long as peace and security are maintained.

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The above remarks may seem to be a rather disappointing conclusion. The development of international law and of the international community, however, has shown that the rule of law and its implementation have gained acceptance. The manifold compulsory dispute settlement regimes – not to mention the newly developed and very important means of dispute prevention49 – cover an increasing range of potential disputes and thus clearly mark a positive development that is more consistent with the international legal society of today than the “Hague model” in its variety and flexibility. With a view to this development it would in fact seem “odd,” to use the term of Sir Robert Jennings, to demand compulsory jurisdiction for one court only, even if that is – in the words of Art. 92 UN Charter – the principal judicial organ of the United Nations.50 Today, the function of the World Court may perhaps need completion, if not redefinition. Its competencies should also include the task of an “international constitutional or supreme court”51 empowered to maintain the integrity and security of international law that will be increasingly challenged or even jeopardized by the multiplication of international courts and tribunals. Proposals in this direction have been made first by President Schwebel in 1999 and again in 2000 by President Guillaume of the ICJ,52 who strongly supported the idea of encouraging the various courts and tribunals, not only those that are organs of the UN, to seek advisory opinions from the Court by way of the Security Council or the General Assembly on issues of international law that arise in cases before them and that are of importance for the unity of international law. Although there can be no doubt as to the merits of these initiatives, their realization poses a series of problems which cannot be examined in this context,53 but which should not be lost sight of. 49

Dispute prevention mechanisms play a significant role in particular in the framework of environmental law, but are regarded as a model to be transposed also to other fields of international law. Cf. G. Loibl, Reporting and Information Systems in International Environmental Agreements as a Means for Dispute Prevention, Non-State Actors and International Law 4 (2004), 1–20; C. Peck, The United Nations as a Dispute Settlement System, Improving Mechanisms for the Prevention and Resolution of Conflict, 1996. 50 Jennings (note 9), MN 130. 51 Cf. M. C. W. Pinot, Judicial Settlement of International Disputes: One Forum or Many?, in: A. Anghie/C. Sturgess (eds.), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry, 1998, 465 et seq., 475. 52 ICJ, Statement of the President of the Court of 27 October 2000, available at http:// www.icj-cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1; also reproduced in A/C.6/55/SR.17. 53 Cf. Oellers-Frahm (note 30), 91 et seq.; T. Treves, Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals, Max-Planck UNYB 4 (2000), 215–233.

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The résumé of the above considerations is the following: Although adjudication has proven to be by far the most promising means of dispute settlement, it has its limits. The slogan ‘Go to Court – not to war’ is not the solution to the problem. It is, however, a very important step in the right direction and, if taken serious, it will certainly contribute not only to the maintenance of international peace and security, but also to the “civilization” of international relations.

How Has Article 36 (2) of the ICJ Statute Fared? By Bruno Simma If, at a conference on the development of peaceful settlement of disputes by international courts and tribunals, ten minutes are allotted to a commentator to assess the fate of the Optional Clause in the Statute of the International Court of Justice, it gives one pause for thought. Could it be that the question asked in the title is nothing more than a friendly “how are you?” by an American acquaintance – a mere formality that would be followed by embarrassment if it were taken, and answered, seriously? The prevailing impression might be that the well-being of the Optional Clause system is an issue on which everything that has to be said has been said a long time ago, and therefore no more than ten minutes are precisely what the topic deserves. Along with this might go a certain feeling of disappointment: does not the present state of the Optional Clause system mark the failure, or at least the decline (to borrow a term from a famous journal article on the subject) of a great idea – an idea born after World War I which tried to revive, on a more modest, realistic scale, one of the projects of the 1907 Hague Conference, and which now, one hundred years later, and despite all sorts of compromises made to make it more palatable, again finds itself in a state of stagnation? This impression is confirmed by a look at what happened to the idea of compulsory jurisdiction of the International Court of Justice when the United Nations were founded in 1945, and after it had been decided to incorporate the Court into the institutional structure of the new world organization. Discussions on the matter in San Francisco ran along lines similar to those developed at The Hague four decades earlier and attempts were made to establish genuine compulsory jurisdiction of the new International Court, or at least to reverse the option available under the Statute of the Permanent Court by allowing states to opt out of such jurisdiction rather than to opt in. At the moment of truth, however, the drafting committee in charge at the Conference decided not to put consensus at risk and left the mechanism of the Optional Clause virtually unchanged. To move to a further source of disappointment: what are we to make of a concept on which ninety percent of the discussion is devoted to the topic of exceptions from the rule – to finding ways of escaping from the “compulsory” element in so-

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called compulsory jurisdiction by way of reservations, while still bowing to the principle? Against this rather defeatist background, let me try to draw a picture in which the proverbial glass would be half-full instead of half-empty – I hope it won’t show too much déformation professionnelle ratione loci. In view of our time constraints and of the expertise of the present audience, I will not have to describe the operation of the Optional Clause and the jurisprudence developed around it – you are familiar with all of this. All I am going to do is to make a few observations and present a few figures. I start with a reminder that there is really very little to be scared of in Art. 36. If you subscribe to its system, and with regard to the binding nature of your commitment, you are no more under the Court’s “compulsory” jurisdiction qua Art. 36 than if you do so in the ways described by Christian Tams a few minutes ago. Indeed, it is something of an oxymoron to speak of “compulsory” jurisdiction coming about by states making use of an “Optional” Clause. The concept of truly compulsory jurisdiction of a genuine “World Court,” in its most comprehensive sense, was one of the favorite objects of the internationalist movement at the time of the Hague Peace Conferences. Today, one hundred years later, it has proved to be infeasible, and it is unnecessary as well. Besides, the adjective “optional” captures the essence of Art. 36 (2), as well as the Zeitgeist of contemporary international law, much better than a Kelsenian, apparently threatening and at the same time misleading, reference to compulsion. The commitment arising from an Art. 36 declaration may nowadays also seem to be less daunting than in the past because of the considerable – and increasing – number of international treaties providing for unilateral access to the Court. At present, around 160 bilateral treaties and about 130 multilateral conventions concluded since 1945 contain compromissory clauses providing for ICJ jurisdiction. To this may be added the impressive figure of around 400 such clauses still in force from PCIJ times. In the last 20 years, more and more of the post-1945 treaties (listed on the Court’s new website!) are multilateral and less are bilateral in nature. In this way, a dense web of substantive international law is brought under the jurisdictional umbrella of the Hague Court and thus somehow “immunized” against the dangers of fragmentation. However, the point I want to make is not to confirm Christian’s conclusions but to demonstrate that nowadays making use of the Optional Clause is nothing radical. What, then, remains as the specific element in the acceptance of the jurisdiction of the ICJ on the basis of the Optional Clause, compared to such submission by way of compromissory clauses in, or optional protocols to, international treaties or special agreements? In other words: what is the added value of the Art. 36 road to

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the Court? A pragmatic answer to this question will come up with several practical differences, all of them relevant in themselves, but I think the most important distinction is that a respectable declaration under the Optional Clause – “respectable” in the sense of not having been distorted by excessive reservations – constitutes an important declaration of trust in the relevance of international law and a principled commitment to the solution of disputes in a peaceful manner of a much stronger, symbolic, character than the other ways foreseen in Art. 36. A state accepting the Court’s jurisdiction ipso facto and without special agreement, to quote Art. 36 (2), is, as the saying goes, willing to put its money where its mouth is. But beyond such declarative value, and returning to a pragmatic analysis of the advantages of adherence to the Optional Clause system, awareness that a failure of negotiations might at any time lead to third-party adjudication will put pressure on the parties to a dispute to get their act together and negotiate in earnest. The indeterminate nature of the judicial process makes it a high-risk gamble for states. Hence, a Sword of Damocles in the form of a binary decision which can go either way may induce states to apply increased flexibility and original thought in negotiations in order to reach a satisfactory conclusion to international disputes. Furthermore, the (indisputable) elements of indeterminacy and risk attached to Optional Clause declarations can be reduced by way of reservations. Of course, some states have made somewhat insincere use of this instrument by accepting the Court’s jurisdiction, while at the same time raising so may reservations as to effectively shield themselves against ever being brought before the Court – a method which in some instances turned out to display boomerang effects vis-à-vis its authors and thus appears to have lost its attractiveness. But if we study the entirety of the reservations accompanying Art. 36 (2) declarations of acceptance, we will see that most of them are very reasonable, ensuring reciprocity and enabling a fair applicant to bring the declaring state before the Court. To take the most recent instance1 as an example, the declaration made by Japan in July 2007 is coupled with a reservation jure temporis, with 1958 as the critical date. It reserves disputes agreed upon by Japan and the other party or parties to be submitted to arbitration, and, finally, it introduces an intuitively reasonable reciprocity to the effect that other parties to the Optional Clause system may only bring Japan before the Court if they themselves have opted in at least twelve months earlier, and did so in a general manner (rather than for a specific dispute).

1 Most recent, that is, at the time of the Kiel Symposium: Germany followed suit and registered a declaration in the spring of 2008.

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Let me now make a few statistical remarks, as it were.2 At the heyday of the Optional Clause system in the era of the Permanent Court, no less than 40 out of the 52 member states of the Statute, that is 74 % of the PCIJ members, had made declarations according to Art. 36 (2). Today,3 66 out of 192 states parties to the ICJ Statute, that is, member states of the UN, have decided to opt in, which amounts to only around 34 % of the entire UN membership. But before you jump to conclusions, please consider that this discrepancy can be attributed to the fact that within the UN system membership in the ICJ Statute follows automatically upon UN membership, while adherence to the Statute of the Permanent Court was not necessarily tied to membership in the League of Nations. Thus, it was mostly nations intending to accept the jurisdiction of the Court from the outset that decided to become parties to its Statute in the first place. Returning to the presence and looking at the member states of the European Union, 18 of the 27 members have made declarations on the basis of the Optional Clause, most recently Germany. I have already mentioned the Japanese declaration of 2007. In the last six years, eight countries have joined, or re-joined. Of the former Socialist countries, Bulgaria, Georgia, Hungary, Poland and Slovakia have opted in since the end of the Cold War. Another interesting statistic: although, compared to the PCIJ era, percentagewise, fewer parties to the Court’s Statute have accepted compulsory jurisdiction, a larger percentage of the cases argued before it have been brought by parties that have made declarations under the Optional Clause. And maybe even more interesting is the fact that in the cases where a dispute brought before the Court under Art. 36 (2) reached final adjudication on the merits, compliance with the judgments of the Court has been almost complete. Thus, until 2005, 37 cases had been brought before the Court under Art. 36 (2); in 9 of these cases a decision was reached on the merits and in all of these instances the judgments were complied with to a major degree. My ten minutes are over, so let me arrive at my conclusion. It is certainly true that the high hopes expressed at the origin of the Optional Clause system remain unfulfilled. But viewed from a realistic angle, Art. 36 (2) has firmly established itself and has enjoyed a certain success. The system of the Clause cannot be said to be in decline anymore, particularly with countries of the caliber of Germany and Japan having signed up to it within a year. While, of course, the system of the Optional Clause is only one among several methods of opening the way to the Hague Court nowadays, it is still the one method which, beyond practical advan2 Following, but also updating, Shabtai Rosenne, The Law and Practice of the International Court 1920–2005, 2006, vol. II, 797–802. 3 Here I chose the date on which the present Comment went to print, that is, mid-2008.

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tages, has the highest, and most desirable, symbolic side-effects, as it were. So, the reply to my American colleague’s friendly “how are you, 36 (2)?” could be “Thank you – a little older, a little tired, more modest, but doing okay!”

The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction* By Christian J. Tams

A. Introduction In seven of the thirteen contentious cases pending before, or decided by, the International Court of Justice (ICJ) in 2007,1 the applicants relied on a compromissory clause, sometimes as the only basis of jurisdiction,2 sometimes in combination with optional clause declarations.3 If one excludes from the count those two cases that are more or less dormant (Gabüikovo Nagymaros4 and Congo v. Uganda5), *

Paper presented under the title “Compromissory Clauses in Treaties and Optional Protocols on Dispute Settlement: Are They Still Relevant?”. The author is grateful to Ms. Saskia Klatte for valuable research assistance and to Mr. Tobias Thienel (LL.M.) for comments on the manuscript. 1 Developments between the presentation of this paper and the conclusion of this contribution (summer 2008) confirm this assessment: in fact, both cases submitted since late 2007 – the Maritime Dispute (Peru v. Chile) and Aerial Herbicide Spraying (Ecuador v. Colombia) – are exclusively based on compromissory clauses, the same holds true for the Georgia v. Russia case instituted in August 2008. 2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, available at www.icj-cij.org; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), pending; Maritime Delimitation in the Black Sea (Romania v. Ukraine), pending; Pulp Mills on the River Uruguay (Argentina v. Uruguay), pending. 3 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, available at www.icj-cij.org; Territorial and Maritime Dispute (Nicaragua v. Colombia), pending; Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), pending. 4 Gabþíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7. The case is retained on the list of pending cases because both parties are under an obligation to agree on specific aspects of implementing the Court’s judgment. 5 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168. The case is retained on

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then the figure is seven out of eleven.6 Depending on which approach is taken, compromissory clauses thus matter in 54 % or even 64 % of the current (2007) ICJ cases. These figures, however, provide little more than a first glimpse at the issues raised by compromissory clauses. When seeking to assess the relevance of the category as such, it is necessary to take a broader approach, to distinguish sub-categories of clauses and to situate them within the general context of modern-day dispute settlement. This is the purpose of the present contribution. It begins by clarifying what is meant by “compromissory clauses” and by outlining means of assessing their relevance (section B). Its main part (section C) then analyzes the importance of compromissory clauses as one of the principal sources of ICJ jurisdiction, taking account of the different sub-categories previously identified. Finally, section D offers some tentative thoughts on how compromissory clauses have shaped the image of modern day dispute settlement.

B. Clarifications In order to assess how compromissory clauses have fared, some clarifications are required, relating to both the concept of compromissory clauses and the notion of relevance.

I. Compromissory Clauses The basic meaning of a compromissory clause seems to be generally agreed on:7 by virtue of a treaty provision, parties accept that disputes between them the list of pending cases because both parties have to agree on the extent and forms of reparation owed to the applicant. 6 The other four cases – i.e. cases pending or decided in 2007, but not involving a compromissory clause – are the following: Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (jurisdiction based on optional clause); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (jurisdiction based on compromis); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (jurisdiction based on Art. 38(5) of the Rules of Court); and Certain Criminal Proceedings in France (Republic of the Congo v. France) (jurisdiction based on Art. 38(5) of the Rules of Court). 7 See e.g. J. Collier/V. Lowe, The Settlement of International Disputes, 1999, 137–139; J. L. Simpson/H. Fox, International Arbitration. Law and Practice, 1959, 51–52; R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice, 1993, 7–8; Sh. Rosenne, The Law and Practice of the International Court of Justice 1920–2005, 2006, 638 et seq.,

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covered by the treaty are to be settled, with binding force, by an independent body. This is what Art. 36(1) of the ICJ Statute means when it states that “the jurisdiction of the Court comprises … all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Art. 36(1) has been analyzed thoroughly,8 and it suffices here to repeat the basic thrust of the conventional wisdom: – the crucial passage are the words “treaties and conventions in force,” whereas the UN Charter itself does not provide for ICJ jurisdiction over specific types of disputes;9 – there is no analytically sound way of distinguishing between “treaties” on the one hand and “conventions” on the other;10 – the requirement that they be “in force” is self-evident.11

645 et seq.; J. G. Merrills, International Dispute Settlement, 4th ed. 2005, 127–128; C. Tomuschat, in: A. Zimmermann/C. Tomuschat/K. Oellers-Frahm (eds.), The ICJ Statute. A Commentary, 2006, Art. 36, MN 46 et seq. 8 See notably F. L. Morrison, Treaties as a Source of Jurisdiction, especially in U.S. Practice, in: L. F. Damrosch, The International Court of Justice at Crossroads, 1987, 58; R. P. Anand, Compulsory Jurisdiction of the International Court of Justice, 1961, 134–140; J. I. Charney, Compromissory Clauses and the Jurisdiction of the International Court of Justice, American Journal of International Law (AJIL) 75, 1981, 85; M. Dubisson, La Cour internationale de Justice, 1964, 155–159; Szafarz (note 7), 17–39; Tomuschat (note 7), MN 33 et seq. From the earlier literature see e.g. M. O. Hudson, The Permanent Court of International Justice 1920–1942. A Treatise, 1943, 435 et seq.; St. Glichitch, La jurisdiction obligatoire de la Court permanente de Justice internationale, 1940, 41 et seq. 9 Aerial Incident of 10 August 1999 (Pakistan v. India), ICJ Reports 2000, 12, 32 (para. 48). According to Tomuschat (note 7), MN 45, the “seemingly ‘idle’ title of jurisdiction” could be put to use by the Security Council if it required states, through Chapter VII resolutions, to submit disputes to ICJ dispute settlement. Whether such a form of mandatory dispute settlement ordered by the Security Council can be brought in line with Art. 41 of the Charter may be a matter for debate. For present purposes, it is more important to note that the Security Council has so far not asserted a competence to order ICJ dispute settlement proceedings. 10 Sh. Rosenne, The Law and Practice of the International Court, 1965, vol. I, 332: “pure pleonasm.” The present version of Rosenne’s work (note 7) seems to avoid such a clear pronouncement. 11 For details see Rosenne (note 7), 641–642. For comment on the much more complex interpretation of the phrase “treaties in force” in Art. 35(2) and Art. 37 of the ICJ Statute see A. Zimmermann, in: Zimmermann/Tomuschat/Oellers-Frahm (note 7), Art. 35, MN 58 et seq.; B. Simma/D. Richemond, ibid., Art. 37, MN 16 et seq.

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Leaner drafting thus might have rendered Art. 36(1) of the Statute, in its relevant part, to read: “The jurisdiction of the Court comprises all matters provided for in treaties.” In addition to Art. 36(1), the ICJ’s jurisdiction can also be established through compromissory clauses that initially referred to the PCIJ; these are transferred to the ICJ under the rather lenient conditions set out in Art. 37 of the Statute.12 The undertaking to submit to binding dispute settlement typically relates to future disputes. Unlike in the case of a compromis or forum prorogatum,13 the parties’ consent is expressed ante hoc, and once a dispute within the terms of the treaty materializes, at least before pre-existing institutionalized tribunals, a case can be brought by means of a unilateral application, possibly against the will of the respondent at the time of the application.14 Dispute settlement on the basis of compromissory clauses, just like proceedings on the basis of the optional clause, is therefore often considered to be an instance of “compulsory jurisdiction,”15 and while that term raises more questions than it answers, it is crucial to note that it is characterized by the possibility of unilateral applications.16 On the other hand, unlike under the optional clause, the Court’s jurisdiction under compromissory clauses is not comprehensive, not even in principle (i.e. notwithstanding possible reservations), but is, instead, treaty-specific. In the system of ICJ jurisdiction, compromissory clauses are thus conveniently seen as the “middle way” to The Hague: more ambitious than a compromis based on ad hoc consent, but not as farreaching as optional clause declarations. 12

Art. 37 provides: “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.” 13 On this see Collier/Lowe (note 7), 136; Simpson/Fox (note 7), 64–66. 14 In contrast, under the traditional regime of ad hoc arbitration established e.g. by the Hague Dispute Settlement Conventions of 1899 and 1907, the parties’ cooperation in the establishment of the tribunal was required; hence there was hardly any room for truly unilateral cases. 15 Sir G. G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–1954: Questions of Jurisdiction, Competence and Procedure, The British Year Book of International Law 34 (1958), 1, 73; C. Wilfred Jenks, The Prospects of International Adjudication, 1964, 2–3; Szafarz (note 7), 3; Rosenne, 1965 (note 10), 334, but contrast the more nuanced approach in the present edition of his work (note 7), 559, with comment in footnotes 128 and 648. 16 This means that treaty clauses which envisage the possibility of binding dispute settlement at the instance of both parties to a dispute are not covered in the following. The plain terms of such a clause show that it is not more than an invitation to the parties to agree on a compromis. For examples of such “non-compulsory clauses” see e.g. Art. XI of the Antarctic Treaty, UNTS, vol. 402, 71; for comment see Szafarz (note 7), 28.

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While that classification is convenient, it tends to obscure the fact that compromissory clauses are a rather heterogeneous category, much more heterogeneous than the label attached to them suggests.17 In fact, since they establish jurisdiction for disputes coming within the terms of a given treaty provision, any assessment has to proceed from the specific formulation of the relevant compromissory clause. This is, in particular, because states have often introduced very subtle distinctions, e.g. concerning preconditions of court proceedings (such as prior negotiations or lapse of time18). But even if these treaty-specific matters are left aside, a number of more general distinctions can be – and need to be – drawn.

1. Clauses in Treaties versus Clauses in Optional Protocols Traditional treaty drafting suggested a distinction between compromissory clauses that form part of the treaty itself, and those included in optional protocols.19 That distinction was often drawn because, for some time, it seemed en vogue among states to relegate compromissory clauses to separate dispute settlement protocols, thus enabling states to join a treaty while abstaining from its dispute settlement mechanism.20 Notable examples are the optional protocols to the Vienna Conventions on Diplomatic and Consular Relations21 or to the four 1958 Geneva Conventions on the Law of the Sea,22 but also (when moving beyond interstate dispute settlement before the ICJ) various optional protocols establishing dispute settlement mechanisms for universal human rights treaties.23 However, for 17

As noted by Morrison (note 7), 59, and Tomuschat (note 7), MN 36. See e.g. Art. 66 (a) of the Vienna Convention on the Law of Treaties (VCLT), UNTS, vol. 1155, 331, providing for a twelve-month cooling-off period during which disputes are to be solved through negotiations. As Steinberger has rightly noted, even the common reference, in compromissory clauses, to disputes “concerning the interpretation and/or application” of a given treaty, is far from clear, H. Steinberger, Preparatory Report: The International Court of Justice, in: Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht (ed.), Judicial Settlement of International Disputes, 1974, 193, 247. 19 This was apparently also reflected in the question which formed the original title of this presentation – see the introductory footnote *. 20 This practice has prompted much (and well-founded) criticism among writers, see e.g. F. Vallat, The Peaceful Settlement of Disputes, in: Cambridge Essays in International Law. Essays in Honour of Lord McNair, 1965, 155, 174; T. D. Gill, Rosenne’s The World Court. What It Is and How It Works, 6th ed. 2003, 72. 21 UNTS, vol. 500, 241, and vol. 596, 487. 22 UNTS, vol. 450, 169. 23 See e.g. the (first) Optional Protocol to the International Covenant on Civil and Political Rights, UNTS, vol. 999, 302, or the Optional Protocol to the Convention on the Elimi18

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various reasons, that distinction does not seem decisive (anymore). Its practical importance is limited, since states today hardly ever decide to conclude separate dispute settlement protocols.24 More importantly, optional protocols, of course, are treaties in themselves, and they are by no means the only treaties dealing exclusively with questions of dispute settlement. Instead, four other distinctions are helpful in finding a way through the maze of compromissory clauses.

2. PCIJ/ICJ Clauses versus Clauses Referring to Other Dispute-Settlement Bodies The term “compromissory clause” is frequently used in relation to treaties establishing the jurisdiction of the ICJ, or of its predecessor, the PCIJ. This narrow approach will also be adopted in the following, but it is not the only possible understanding. The idea that states, through treaty-specific provisions, establish the competence of a certain institution to decide a future dispute is by no means limited to the PCIJ and ICJ. Given the focus of the present volume, it may be proper to recall that one hundred years ago, the 1907 Hague Convention encouraged states to “conclud[e] new Agreements, general or particular, with a view to extending compulsory arbitration to all cases which they may consider it possible to submit to it.”25 While this was cautiously phrased, and a far cry from the general compulsory arbitration clause many had hoped for,26 it was an invitation to agree on treaty-specific dispute settlement mechanisms providing for interstate arbitration by the Permanent Court of Arbitration – i.e. PCA compromissory clauses. Modern compromissory clauses providing for arbitration typically do not focus on that institution (the PCA), but rather establish a duty to arbitrate before ad hoc trination of All Forms of Discrimination against Women, reprinted in: International Legal Materials (ILM) 39 (2000), 281. 24 Sfafarz (note 7), 27. Optional protocols concluded to remedy shortcomings in the existing monitoring mechanisms, e.g. in the field of human rights treaties, form an exception. 25 Art. 40 of the (second) Hague Dispute Settlement Convention of 1907, reproduced in: Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents, 2001, 427. 26 For a recent reassessment of the Conference’s “titanic debate” on obligatory dispute settlement procedure see A. Eyffinger, A Highly Critical Moment: Role and Record of the Second Hague Peace Conference, Netherlands International Law Review 54 (2007), 197, 217–223, as well as C. J. Tams, Die Zweite Haager Konferenz und das Recht der friedlichen Streitbeilegung, Die Friedens-Warte 82 (2007), 119, 126–127. The expression “titanic debate” is taken from Eyffinger, ibid., 219.

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bunals (which in turn may seek assistance from the PCA secretariat27). Nevertheless, the relevant point is that ICJ and PCIJ are not the only institutions to which compromissory clauses can refer. Analytically, there is no harm in subsuming treaty provisions establishing the treaty-specific jurisdiction of specialized international courts other than the ICJ under the notion of compromissory clause, as they operate in precisely the same way. Needless to say, if they were included, the crucial relevance of compromissory clauses could not seriously be disputed.

3. Types of Treaties Containing Compromissory Clauses When focusing on compromissory clauses establishing the jurisdiction of the world court, three other distinctions are crucial. The most apparent depends on the treaty containing the dispute settlement clause. This may be a treaty that has exclusively been concluded to address matters of dispute settlement, such as the 1957 European Dispute Settlement Convention,28 its American equivalent (the Pact of Bogota)29 or bilateral treaties for the pacific resolution of disputes.30 Alternatively, jurisdiction may be established by a treaty governing specific substantive aspects of international law, to which a compromissory clause is attached. In both cases, the scope of jurisdiction depends on the terms of the treaty, but there is a crucial distinction. Dispute settlement conventions typically cover all disputes, possibly with an exception for “vital national interests” or “national honor.”31 In contrast, dispute settlement clauses integrated in a regular treaty are naturally limited to the 27 Pursuant to Art. 47 of the second Hague Convention of 1907, the Secretariat “is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration.” In recent time, states and other entities have made use of that option in a broad range of cases; examples include the Eritrea/Jemen arbitration, disputes brought before arbitral tribunals established under Annex VII to the UN Law of the Sea Convention or a host of mixed arbitrations notably brought under UNCITRAL rules. While all of these are administered by the PCA secretariat, they are no PCA arbitrations in the proper sense. For comment see Tams (note 26), 130–132, and – in much more detail – J. J. van Haersolte-van Hof, The Revitalization of the Permanent Court of Arbitration, Netherlands International Law Review 54 (2007), 395. 28 1957 European Convention for the Peaceful Settlement of Disputes, UNTS, vol. 329, 243. 29 1948 American Treaty on Pacific Settlement, UNTS, vol. 30, 55. 30 See e.g. the 1965 Treaty for Conciliation, Judicial Settlement and Arbitration between the United Kingdom and Switzerland, 1965 Cmnd. 2741. For more on this and other examples see infra, section C. I. 31 According to Simpson/Fox (note 7), 16, this exception was the “stock formula of bilateral arbitration treaties” concluded in the early 20th century.

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substantive issues addressed. Their scope is thus likely to be limited; its importance depends primarily on the substantive reach of the treaty. This, in turn, means that there are major differences not only between bilateral and multilateral clauses, but also between narrow clauses covering e.g. questions concerning the “Agreement for the provision of a special loan to the Government of the Republic of Ghana to facilitate the payment of medium term commercial debts”32 and broad sweeping clauses like that found in Art. 37 of the ILO Constitution, pursuant to which the ICJ can decide on all disputes arising under the ILO Constitution or any of the 188 subsequent ILO Conventions.33

4. Proper Compromissory Clauses versus Opt-In Mechanisms Moreover, the importance of a compromissory clause may depend on its formulation. Traditionally, if states agreed to include a compromissory clause in a treaty, this clause was part and parcel of the treaty and automatically established the jurisdiction of an international court. More recently, there has been a trend towards optional compromissory clauses, which have replaced the practice of concluding separate treaties, labeled optional protocols. Instead, the optional element is being integrated into the dispute settlement clause, which typically invites parties to declare their willingness to accept some form of binding dispute settlement.34 These clauses clearly lack teeth; their potential depends not on the number of state parties to the treaty, but on the number of opt-in declarations.

5. PCIJ versus ICJ Clauses Lastly, when seeking to assess how compromissory clauses have fared over time, it is necessary to distinguish clauses establishing the ICJ’s jurisdiction proper from those that initially referred to the PCIJ, but which have been transferred to the ICJ through Art. 37 of the ICJ Statute.35 While both are compromissory clauses, the attitude of states in formulating such clauses has indeed changed over time, and the distinction between Arts. 36(1) and 37 of the ICJ Statute remains helpful in that respect.

32 33 34 35

UNTS, vol. 805, 191. 1919 Constitution, as amended in 1946, UNTS, vol. 15, 100. For details see infra, section C. I. 3. (iii). Cf. note 12.

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6. Interim Assessment To sum up, the range of compromissory clauses is broad and heterogenous. When focusing on the world court, it is necessary to distinguish clauses found in dispute settlement conventions from clauses annexed to substantive treaties, automatic clauses from optional clauses, and ICJ clauses from transferred PCIJ clauses. These distinctions are, by no means, the only differentiations that one could introduce, yet they seem important and permit a differentiated analysis of the heterogeneous category of compromissory clauses.

II. Relevance Before proceeding with that analysis, it is necessary, however, to consider how the relevance of a given clause can be assessed. Definitions or descriptions of the expression “relevance” (e.g. likening it to “pertinence,” or describing it as something “closely connected to the matter at hand”36) are of little practical help in this regard. Pragmatically, one might consider the matter by looking at two indicators of relevance: – Have states agreed on compromissory clauses? – Have they used compromissory clauses when instituting ICJ proceedings? In other words, the relevance of compromissory clauses can be assessed with respect to “clauses” and “cases.” Both questions have a quantitative dimension first and foremost, so it will be necessary to look at statistical figures, i.e. the number of clauses concluded and of cases instituted. Looking beyond the statistics, the quality (or importance) of compromissory clauses and cases will have to be evaluated. This involves an assessment of whether compromissory clauses cover crucial areas of international relations or marginal, technical issues. Finally, in order to assess the evolution of treaty practice and jurisprudence over time, it is important to identify the most visible developments.

C. The Continued Relevance of Compromissory Clauses On the basis of these tests and questions, the relevance of compromissory clauses can be assessed in a differentiated way.

36 See Oxford English Dictionary, 2nd ed., vol. XIII, 1991, entry “relevant,” and Merriam-Webster’s Collegiate Dictionary, 11th ed. 2003, entry “relevance,” respectively.

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I. Agreement on Compromissory Clauses It is helpful to begin by seeking to assess the relevance of compromissory clauses.

1. Statistics In terms of sheer numbers, the answer seems relatively straightforward. A brief glance at the ICJ Yearbooks and on the Court’s website suggests that the number of compromissory clauses is surprisingly large. Of course, anyone vaguely familiar with ICJ jurisprudence will immediately recall a handful of examples. But even the most experienced commentators could hardly be expected to know all of them, as the absolute figure is quite remarkable. If we trust the Court’s information,37 states have agreed on almost 300 such treaties since 1946 (293). Nearly half of these (137) are multilateral, many of them with considerable numbers of state parties, and the remaining 156 are bilateral. As for the other relevant distinction identified above, the bulk of clauses are part of regular substantive treaties, whereas only eight dispute settlement conventions make reference to the ICJ, three of them multilateral,38 five bilateral.39 Since they cover very diverse questions, substantive treaties with integrated dispute settlement provisions are not easily subdivided, yet the following important sub-categories stand out:40 – multilateral law-making conventions; 37

See the list of treaties containing compromissory clauses reproduced in consecutive editions of the ICJ Yearbook and on the Court’s website http://www.icj-cij.org/jurisdiction/ index.php?p1=5&p2=1&p3=4. The Court itself has added the following disclaimer: “The fact that a treaty is or is not included in this section is without prejudice to its possible application by the Court in a particular case.” 38 Namely the 1949 (revised) General Act for the Pacific Settlement of International Disputes, UNTS, vol. 71, 101, and the two above-mentioned regional instruments, the 1957 European Dispute Settlement Convention (note 28) and the 1948 Pact of Bogota (note 29). 39 Pursuant to the information available on the Court’s website http://www.icj-cij.org/ jurisdiction/index.php?p1=5&p2=1&p3=4, these are the following: 1939 Treaty of NonAggression, Conciliation and Judicial Settlement (Colombia/Venezuela); 1940 Treaty for the Pacific Settlement of Disputes (Brazil/Venezuela); 1950 Treaty of Friendship, Conciliation and Judicial Settlement (Turkey/Italy); 1956 Convention on Judicial Settlement (Greece/Sweden) and the above-mentioned British-Swiss Treaty for Conciliation, Judicial Settlement and Arbitration between the United Kingdom and Switzerland (note 30). 40 For a similar, but more nuanced distinction see Morrison (note 8), 62 et seq.

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– organizational treaties – such as Constitutions of UN specialized agencies; – treaties for economic integration and commerce treaties (including Friendship, Commerce and Navigation (FCN) treaties); – other bilateral treaties with a limited subject matter (notably consular relations or aircraft services). In any event, states have made rather frequent use over the last 60 years of the possibility envisaged in Art. 36(1) of establishing the Court’s jurisdiction through treaty-specific compromissory clauses. Yet, when searching for the absolute figure of jurisdiction-establishing instruments, treaties establishing the PCIJ’s jurisdiction, which pursuant to Art. 37 of the Court’s Statute can be transferred to the ICJ, have to be taken into account as well. The number of these treaties is more difficult to establish, as consolidated lists of treaties are unavailable.41 However, it is clear that despite the short lifetime of the PCIJ, the figure exceeds that for post-1946. During the inter-war period, approximately 400–500 treaties were concluded.42 While many of these have been forgotten and a few have been officially denounced, a rough estimate might put the figure of existing clauses at approximately 300–400. Lastly, in addition to treaties in the formal sense, parties may decide to establish the Court’s jurisdiction for future disputes through exchanges of notes, as happened in the Icelandic Fisheries cases brought by Germany and the United Kingdom.43 The number of such informal compromissory clauses is difficult to assess, but even if they are left out of the count, there are nonetheless approximately 600– 700 clauses allowing for unilateral applications to the ICJ. One can only speculate how the Court would respond if states decided to more frequently avail themselves of the jurisdictional options presented to them. In any event, when looking solely at the numbers, it is clear that compromissory clauses are a relevant source of the Court’s jurisdiction. 2. Importance So much for the statistics. What about the importance of the relevant compromissory clauses? Do they permit recourse to the ICJ in crucial areas of interna41

For details on these documentary problems see Simma/Richemond (note 11), MN 2. See the differing estimates by Morrison (note 8), 69: 500; Anand (note 8), 38 and 136: 400; and R. C. Lawson, The Problem of the Compulsory Jurisdiction of the World Court, AJIL 46 (1952), 219, 225: 400. 43 Cf. the respective paras. 25–26 of the two Merits Judgments of 25 July 1974, ICJ Reports 1974, 3 and 175. 42

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tional relations, and between many states? The answer to these questions may be a matter of perspective. The web of compromissory clauses is by no means comprehensive, as states concluding important multilateral law-making treaties have frequently and deliberately avoided the possibility of recourse to courts. A “blacklist” of treaties bypassing the ICJ includes the 1949 Geneva Conventions and their 1977 Optional Protocols,44 the two Human Rights Covenants45 and the Convention on the Rights of the Child,46 the WTO agreements,47 to name but a few. Other major treaties, such as the Vienna Convention on the Law of Treaties, have deliberately allowed the Court only a marginal role,48 while modern environmental agreements or the Law of the Sea Convention merely envisage ICJ dispute settlement as one of many available options.49

44

UNTS, vol.75, 31, 85, 135 and 287; UNTS, vol. 1125, 3 and 809. It might be added that the Final Act of the 1949 Conference encouraged states to refer disputes to the Court through joint applications, see Resolution 1, UNTS, vol. 75, 22. But to date, states have failed to follow this recommendation. 45 UNTS, vol. 999, 3 and 171. In contrast, earlier drafts had envisaged a more prominent role for the Court, see Jenks (note 15), 40. 46 UNTS, vol. 1577, 3. 47 UNTS, vol. 1867, 3. 48 UNTS, vol. 1155, 331. The Convention limits ICJ dispute settlement to “dispute[s] concerning the application or the interpretation of article 53 or 64,” i.e. issues relating to peremptory norms. 49 As for the Law of the Sea Convention, see the “cafeteria approach” adopted in Art. 287 LOSC which enables parties to opt for any of the following means of dispute settlement: (a) the International Tribunal for the Law of the Sea; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. Pursuant to paras. 3 and 5 of the provision, the default choice is arbitration in line with Annex VII; this considerably reduces the chances of an ICJ case brought under Art. 287 LOSC. As for environmental agreements, a typical clause is contained in Art. 27(3) of the Convention on Biological Diversity, UNTS, vol. 1760, 79, which provides: “When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory: (a) Arbitration in accordance with the procedure laid down in Part 1 of Annex II; (b) Submission of the dispute to the International Court of Justice.” For comment on the optional nature of this “commitment” see infra, section C. I. 3. (iii).

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These examples illustrate that there are indeed major “gaps in the network of compromissory clauses.”50 Yet, if one were to focus on them, one would be taking the wrong perspective. The fact that a blacklist of treaties bypassing the ICJ exists does not settle matters. In fact, a system based on treaty-specific compromissory clauses is bound to have gaps, as agreement on such clauses requires the agreement and positive action of states in each individual case. The real test therefore seems to be whether the existing compromissory clauses cover important areas of international relations. Of course, with 600–700 clauses, that question defies an easy answer. A safe lawyerly answer would be to say that some clauses are extremely important, while others are negligible. But on balance, closer analysis reveals that a surprising number of important areas are covered. Notwithstanding the many gaps, the glass is half-full rather than half-empty. To support that view, three aspects can be mentioned. (a) First, dispute settlement conventions certainly cover important matters of international law, as (subject to reservations) they tend to cover all disputes, including important matters. Most of them permit states to bring vital questions before the Court. The conclusion of dispute settlement conventions by states thus means a major expansion of the Court’s scope of jurisdiction.51 As is well-known for precisely that reason, states, at least since 1945, have approached dispute settlement conventions rather cautiously. As far as ratifications are concerned, the great expectations of those believing in the civilizing effect of general and comprehensive dispute settlement treaties have been disappointed. No more than eight states have ratified the 1949 Revised General Act.52 The figures are slightly less depressing for the 1928 (original) General Act (19 parties),53 but it is much disputed whether this Act remains in force, and the Court has shown a curious reluctance to apply it.54 In short, neither of these treaties has brought about the jurisdictional revolution they were meant to ignite. Yet, there has been some movement. Attempts to formulate 50

Cf. Tomuschat (note 7), MN 52. See e.g. Tomuschat (note 7), MN 47: “of the greatest importance.” 52 See the information provided by the depositary at http://untreaty.un.org/ENGLISH/ bible/englishinternetbible/partI/chapterII/treaty1.asp. 53 Morrison (note 8), 69. For slightly different figures contrast the (very difficult to assess) information on the Secretary-General’s website http://untreaty.un.org/ENGLISH/ bible/englishinternetbible/partII/Treaty-29.asp. 54 The most recent example of the Court’s avoidance to pronounce on the continuing validity of the Act is the Judgment of 21 June 2000 in Aerial Incident of 10 August 1999 (note 9), 23–25, paras. 26–28. For details on this point see J. G. Merrills, The International Court of Justice and the General Act of 1928, Cambridge Law Journal 39 (1980), 137; C. Tomuschat, The 1928 General Act for the Pacific Settlement of International Disputes Revisisted, in: N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda, 2002, 977. 51

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regional dispute settlement conventions have been rather more successful: both the 1957 European Dispute Settlement Convention and its American equivalent, the Pact of Bogota, apply between fourteen states.55 Finally, while the figure of five bilateral dispute settlement conventions since 1946 is unimpressive, a great many bilateral dispute settlement treaties from the inter-war period remain in force.56 As a means of transforming international relations, the dispute settlement convention movement may have failed, but these conventions are relevant as an element in the Court’s jurisdiction. (b) Of the many substantive treaties with integrated dispute settlement clauses, most would rate widely ratified law-making treaties among the most important.57 As is well-known, the emergence of such law-making treaties has been a decisive factor in the development of international law over the last decades.58 As noted earlier, many of these treaties deliberately bypass the ICJ. Yet a surprisingly large number of them does provide for recourse to The Hague. The list notably includes the Genocide Convention,59 the Refugee Convention,60 and specialized human rights treaties like the Anti-Slavery Conventions,61 the Convention on the Elimination of All Forms of Discrimination Against Women,62 the Convention Against Torture,63 the Convention on the Elimination of All Forms of Racial Discrimination,64 and the earlier Conventions on the Reduction of Statelessness65 and on the Political Rights of Women.66 Outside the human rights field, the Diplomatic and 55 Cf. http://www.oas.org/juridico/spanish/firmas/a-42.html and http://conventions.coe. int/Treaty/Commun/ListeTableauCourt.asp?MA=2&CM=16&CL=ENG. 56 Anand (note 8), 136, puts their original figure at an astonishing 175. For brief comment see also Jenks (note 15), 25–26. 57 See Morrison (note 8), 65 et seq.; and cf. the examples given by Tomuschat (note 7), MN 48 et seq. 58 Aptly reflected in Bruno Simma’s characterization of multilateral treaties as “workhorses of community interest,” id., From Bilateralism to Community Interest, Recueil des Cours 250 (1994-VI), 217, 322. 59 UNTS, vol. 78, 277 (Art. IX). 60 UNTS, vol. 189, 150 (Art. 38); and cf. also Art. IV of the 1967 Protocol, UNTS, vol. 606, 267. 61 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, UNTS, vol. 226, 3 (Art. 10); Slavery Convention of 1926, LNTS, vol. 60, 253, as amended by the 1953 Protocol, UNTS, vol. 182, 51 (Art. 8). 62 UNTS, vol. 1249, 13 (Art.29(1), but with opt-out clause in para. (2)). 63 UNTS, vol. 1465, 85 (Art. 30(1), but with opt-out clause in para. (2)). 64 UNTS, vol. 660, 195 (Art. 22). 65 UNTS, vol. 989, 175 (Art. 14). 66 UNTS, vol. 193, 135 (Art. 9).

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Consular Optional Protocols should be mentioned,67 as should the 1971 Montreal Convention,68 the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,69 the European Convention on State Immunity,70 and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.71 Finally, in addition to law-making treaties, one might think of treaties establishing important international organizations. For some time, in addition to provisions envisaging ICJ advisory opinions on issues of organizational law, these almost inevitably contained dispute settlement provisions providing for recourse to the ICJ in disputes concerning the interpretation and application of the constitution72 – e.g. with respect to the ILO,73 ICAO,74 UNESCO,75 IAEA,76 WHO77 or the FAO.78 This list should not be taken to suggest that all major areas of modern international law were comprehensively covered. The crucial point is that many treaties governing important aspects of international relations envisage recourse to the ICJ at the instigation of one party. The potential for ICJ litigation over controversial and highly divisive questions of international relations is, thus, much larger than is usually assumed. (c) Most of the other treaties have a more limited reach ratione materiae, and are often binding on only a few states. Looked at from the Court’s perspective, none of these treaties is important in itself; each of them only marginally extends the scope of the Court’s jurisdiction. However, they remain important as a sub-category for two reasons: first, because of their considerable number; and second, because the terms of the treaty may be interpreted broadly so that an eventual dispute before 67

UNTS, vol. 500, 241, and vol. 596, 487 (the respective Art. I). UNTS, vol. 520, 204 (Art. XIV). 69 UNTS, vol. 1678, 221 (Art. 16(1), but subsequent to attempts at arbitration, and with opt-out clause in para. (2)). 70 UNTS, vol. 1495, 181 (Art. 34(1)). 71 UNTS, vol. 575, 159 (Art. 64). 72 Writing in 1964, Wilfred Jenks considered it “to have become standard practice for the constitutions of major international organisations to give some measure of compulsory jurisdiction to the Court,” Jenks (note 15), 36. For comment on the advisory jurisdiction of the Court see K. Oellers-Frahm, in: Zimmermann/Tomuschat/Oellers-Frahm (note 7), Art. 65, MN 12, and Art. 96 UN Charter, MN 28. 73 See note 33. 74 UNTS, vol. 15, 352 (Art. 84). 75 UNTS, vol. 4, 292 (Art. 14(2)). 76 UNTS, vol. 276, 3 (Art. XVII). 77 UNTS, vol. 14, 202 (Art. 75). 78 Reprinted in AJIL 40 (1946), Supplement, 76 (Art. XVII). 68

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the Court covers much more than the parties initially anticipated. In short, even though they may appear insignificant, they should not be overlooked. To conclude on this rather broad point, compromissory clauses do establish the Court’s jurisdiction in important areas of international relations. Dispute settlement conventions with general scope stand out, as do multilateral law-making conventions, many of which envisage some role for the ICJ. In addition, the large number of more restrictively-formulated compromissory clauses may be construed broadly.

3. Developments Lastly, what are the developments? Have there been crucial changes in the attitude of states towards compromissory clauses? Whereas the previous sections have stressed the breadth of ICJ jurisdiction based on compromissory clauses, this last question yields a different answer. The overall impression is that the willingness of states to conclude compromissory clauses has decreased markedly, especially in recent years. There are three aspects to this general trend: (a) First, ever since the establishment of the ICJ, there has been some decline, but for a while, it was decline on only a relatively limited scale. Historically, the number of ICJ compromissory clauses has always been lower than that establishing the jurisdiction of its predecessor. In two decades, the PCIJ attracted 400–500 compromissory clauses; despite the increase in the number of international treaties, the ICJ has remained just below 300 in 60 years.79 However, for a long time, this decline was relative. Even if the ICJ never reached the PCIJ’s figures, there certainly was no standstill, as many new clauses were being negotiated. And finally, the decline in the number of clauses was matched by a move towards multilateral clauses. (b) Sometime during the 1970s, things began to change. 1976 was the first year in which no new clause was agreed. This was not an isolated event. Instead of 61, as in the 1960s, or 101 as in the 1950s, states entered into only 32 new compromissory clauses between 1970 and 1979. From there on, the figure went down to 11 in the 1980s, and has not really recovered since. In short, states are now much less willing to expand the Court’s jurisdiction through compromissory clauses. For two important types of treaties, there is indeed a virtual standstill. The first type of treaty is the dispute settlement convention, i.e. a treaty solely dealing with questions of conflict resolution. Although there have never been 79

See supra, section C. I. 1. For references to the PCIJ figures see supra, note 42.

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many such conventions, their broad scope ratione materiae has made them an important source of jurisdiction since 1945.80 By now, however, dispute settlement treaties seem to have become very unpopular. More than forty years have passed since the conclusion of the last dispute settlement convention providing for ICJ jurisdiction,81 and fifty years since the last attempt to set up a multilateral dispute settlement convention (the 1957 European Convention).82 In short, as far as dispute settlement conventions are concerned, there is a standstill. Second, the same applies to bilateral treaties envisaging recourse to the ICJ. The last bilateral compromissory clause was agreed on in 1993,83 and for the last 25 years, the total figure is three.84 The crucial relevance of this trend may be grasped if that figure (three in 25 years) is compared to the 69 bilateral clauses concluded during the 1950s. Just as with respect to dispute settlement conventions, the scope of the Court’s jurisdiction under bilateral treaties is now effectively static. (c) As far as multilateral treaties with integrated dispute settlement clauses are concerned, matters are more difficult to assess. Unlike bilateral treaties or dispute settlement conventions, modern multilateral treaties continue to refer to the ICJ. Between 1994 and 2003, 22 such multilateral compromissory clauses have been concluded, some of them attached to important conventions such as the Arhus Convention,85 or the UN Conventions against Transnational Organized Crime86 or Corruption.87 If looked at from a distance, the list of new multilateral compromissory clauses looks, in fact, quite impressive. Yet one should not be misled. More often than not, the modern multilateral treaties do not establish the Court’s jurisdiction ipso facto but merely provide opt-in mechanisms.88 This applies notably to the many multilateral environmental treaties, which usually contain clauses like the following: When signing, ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a Party may declare in writing to the Depositary that for a dispute not 80

See supra, section C. I. 2. (i). Namely the British-Swiss Treaty for Conciliation, Judicial Settlement and Arbitration between the United Kingdom and Switzerland (note 30). 82 See supra, note 28. 83 Namely the Agreement of Management and Co-operation between Senegal and GuineaBissau. 84 The other two bilateral agreements mentioned by the Court are the 1989 Treaty of Extradition of between Switzerland and the Philippines and the 1991 Treaty of Mutual Assistance in Criminal Matters between Australia and Switzerland. 85 UNTS, vol. 2161, 450 (Art. 16(2a)). 86 UNTS, vol. 2225, 275 (Art. 35(2)). 87 UNTS, vol. 2246, 6 (Art. 66(2)). 88 Cf. supra, B. I. 4. 81

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resolved in accordance with paragraph 1 of this Article [i.e. through negotiation, Tams], it accepts one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligations: a) Submission of the dispute to the International Court of Justice; b) Arbitration in accordance with the procedure set out in Appendix VII.89

Since, by and large, few states have made use of that option, the real impact of these clauses has been limited. As invitations to opt-in, they simply lack teeth. The same can be said of clauses envisaging ICJ dispute settlement as an alternative to arbitration, especially if the ICJ is not even named as the default option, as under the many UN Conventions against organized crime or terrorism, and if the treaties specifically allow for opting-out. By way of illustration, Art. 35(2) of the Convention Against Transnational Organized Crime may be mentioned, which provides: Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.90

In fact, the closer one looks at the new multilateral compromissory clauses, the less remains of the scope of new ICJ jurisdiction. Of the 22 compromissory clauses concluded since 1994, not a single one is formulated as a regular, traditional clause automatically establishing the Court’s jurisdiction; all of them provide for opt-in mechanisms or rely mainly on arbitration. This suggests that modern multilateral clauses, although they continue to be drafted, are less relevant than might be assumed at first sight. There is no standstill, but the scope of the Court’s jurisdiction is increasing at a much slower pace than it did previously. The decline of compromissory clauses can be attributed to a number of causes. It would be wrong to merely explain it as a result of states’ unhappiness with the Court. In some fields, the Court may, in fact, have suffered from the progressive development of international law. For example, the fact that the multilateral Optional Protocol to the Vienna Convention on Consular Relations91 provides for ICJ dispute settlement means that many states no longer feel the need to agree on bilateral consular treaties with compromissory clauses. Similarly, the spectacular emergence of bilateral investment treaties (BITs) on the international scene92 has 89 See Art. 15(2) of the Convention on Environmental Impact Assessment in a Transboundary Context (the “Espoo Convention,” UNTS, vol. 1989, 309). 90 See supra, note 86. 91 See supra, note 21. 92 On this development see R. Dolzer/C. Schreuer, Principles of International Investment Law, 2008, 17–23. The BIT compilation assembled by UNCTAD makes available the

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reduced the need for states to provide for ICJ dispute settlement in interstate commerce treaties. Since modern BITs almost inevitably grant standing to companies, it is no longer necessary to provide for cumbersome diplomatic protection claims to protect investors.93 In short, some classical categories of compromissory clauses no longer seem necessary. Nevertheless, this does not fully explain the decline of compromissory clauses. At least partly, the unwillingness of states to enter into new clauses shows that they view the Court more critically. It is no surprise that this trend began in the 1970s and 1980s, i.e. at a time when confidence in the Court was at an all-time low.94 Crucially however, even when the Court rebuilt confidence in the 1990s, the trend has not been reversed. The current state of affairs is, thus, rather disappointing. It may reflect a preference for more flexible forms of dispute resolution among states, as well as an increased reliance on managerial approaches to monitoring treaty compliance – particularly prominent (but not limited to) treaties in the field of international environmental law.95 Moreover, the ICJ suffers from competition with other institutions, among them specialized courts such as the International Tribunal for the Law of the Sea or non-compliance bodies, and with the more flexible form of arbitral dispute settlement. In short, while it was never automatic that treaties would contain compromissory clauses, the ICJ today is merely one of many different options, each with distinct advantages and disadvantages.

4. Interim Conclusions Where does this leave us? Since the 1920s, states have entered into an impressive, indeed almost staggering, number of compromissory clauses; many of these clauses concern important matters of international relations (or can at least be broadly construed so as to cover them). On the other hand, states today are extext of some 1,800 bilateral investment instruments, http://www.unctadxi.org/templates/ DocSearch____780.aspx. 93 Cf. Dolzer/Schreuer (note 92), 211–213. 94 On the reasons for the Court’s loss of reputation – chiefly the judgments in the South West Africa case – see Sir R. Y. Jennings, in: Zimmermann/Tomuschat/Oellers-Frahm (note 7), General Introduction, MN 58–60 and 63 et seq., as well as E. McWhinney, Judicial Settlement of International Disputes. Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court, 1991, 16–23. 95 For case studies of many treaty-based monitoring mechanisms see the various contributions to G. Ulfstein/T. Marauhn/A. Zimmermann (eds.), Making Treaties Work: Human Rights, Environment and Arms Control, 2007.

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tremely unwilling to conclude new compromissory clauses. Historically, compromissory clauses are the most relevant source of ICJ jurisdiction. Yet this relevance is built on old treaties – on past achievements. Perhaps the scope of the ICJ’s compromissory clause jurisdiction might be compared to a country with a glorious past and many archaeological sites, but very few modern-day highlights. Is such a country still relevant – and does the category of compromissory clauses remain relevant? For a very simple reason, the better view is that it does remain relevant: Even if states cease to agree on new compromissory clauses, the old ones (like archaeological remnants of a glorious past) remain intact. In fact, experience suggests that compromissory clauses, once concluded, exist de facto forever. Unlike optional clause declarations, which at times are temporally limited, they remain in force until the parties decide to terminate the treaty of which they form part. This, however, hardly ever happens. Experience suggests that states almost never denounce compromissory clauses, even when the general political climate in which a jurisdiction-conferring treaty was concluded has completely changed.96 Of course, such cases do occur, with the United States’s decision to withdraw from the Consular Convention’s Optional Protocol providing a prominent example.97 This seems to be an exception, however, especially when compared to state practice with respect to optional clause declarations, which have frequently been terminated or not renewed.98 It can thus be said that, at least for practical purposes, existing compromissory clauses remain unchanged forever. This, in turn, is a crucial factor affecting the present-day relevance of compromissory clauses. In particular, it reduces the importance of the temporal element. 96 By way of illustration, it is worth stressing that the United States continues to be bound by treaties of amity or FCN treaties with a number of countries it has invaded or at some point sought to invade, such as Vietnam, Nicaragua or Iran. 97 Cf. F. L. Kirgis, Addendum to ASIL Insight, March 2005, President Bush’s Determination Regarding Mexican Nationals and Consular Convention Rights, available at http:// www.asil.org/insights/2005/03/insights050309a.html. 98 Countries which have withdrawn their optional clause declarations include Iran, Israel, South Africa, Thailand, France and the United States. In addition, states such as Bolivia, Brazil, El Salvador, Guatemala and Turkey have decided not to renew temporally limited declarations. For details see Rosenne (note 7), 788–789, as well as F. Orrego Vicuña, The Legal Nature of the Optional Clause and the Right of a State to Withdraw a Declaration Accepting the Compulsory Jurisdiction of the International Court of Justice, in: Ando et al. (note 54), 463, 471 et seq. Cf. also Jenks (note 15), 19–24, for examples of states subsequently restricting their optional clause declarations. The French and United States’ letters of withdrawal can be found at Annuaire Français de Droit International 20 (1974), 1052, and ILM 24 (1985), 1742.

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Even if no new clauses are concluded, the old ones remain intact – unlike in the German saying “Stillstand ist Rückschritt”, standstill does not necessarily signify regression. Compromissory clauses may thus acquire something of a “Sleeping Beauty” quality. The relevant treaty of which they form a part may long have been forgotten, but when some government official involved in an ICJ case stumbles across it, it may just be kissed awake. Notwithstanding the reluctance of states to conclude new compromissory clauses, the category therefore remains highly relevant. It remains to be seen whether its potential relevance has translated into actual cases before the ICJ – whether the sleeping beauties have found their Prince Charming.

II. Reliance on Compromissory Clauses in ICJ Proceedings In order to answer this question, it is necessary to assess the role of compromissory clauses in ICJ proceedings, both in terms of statistics and importance of cases, and to outline some of the major developments in this field.

1. Statistics Again, it is helpful to begin by looking at some statistical figures. The number of compromissory clauses that have actually been put to use before the Court is limited. Of the approximately 600–700 existing clauses, hardly more than 30 have been invoked in ICJ proceedings, and some of them, of course, more than once. Needless to say, the number of compromissory clauses successfully invoked before the Court is even smaller. At first sight, one might therefore be tempted to say that the trend to conclude compromissory clauses has not prompted much judicial activity – that few Sleeping Beauties have in fact been awakened. But that assessment does not withstand closer scrutiny. In fact, the seemingly weak ratio is not a particular problem of Arts. 36(1) and 37 of the Statute, but is instead a consequence of the ICJ’s limited number of cases. With an average of less than two contentious cases per year,99 the Court’s throughput is limited, as is the willingness of states to go to The Hague. When bearing in mind these factors, the statistics should be viewed differently. Compared to the other bases of ICJ jurisdiction, compromissory clauses have, in 99

Pursuant to the information provided by the Court between 1947 and early 2008, 138 cases were entered into the Court’s General List. Of these, 24 were advisory in nature, which leaves 114 contentious cases in just over 60 years, see http://www.icj-cij.org/docket/ index.php?p1=3.

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fact, fared rather well. To the present writer’s knowledge, 51 of the 114 contentious cases were based on compromissory clauses (either exclusively or in relation with other bases of jurisdiction); this figure clearly exceeds that of joint applications and equals that of optional clause proceedings.100 Statistically, compromissory clauses are thus the most important source of the Court’s jurisdiction, and quantitatively, they have clearly been relevant for the ICJ. Given the small numbers of proceedings, figures on the types of clauses being used should be read cautiously; they may simply be a matter of coincidence. But very briefly, and viewed with caution, the following details emerge. (a) One is that states have been surprisingly reluctant to invoke compromissory clauses found in major law-making conventions. To give some examples, broad clauses like Art. 38 of the 1951 Refugee Convention or the catch-all clause found in Art. 37 of the ILO Constitution have never been used, and only one state, the Democratic Republic of the Congo, has (unsuccessfully) sought to explore the potential of human rights treaty litigation before the Court.101 Insofar as states have sought to vindicate their rights under major law-making conventions, not more than a handful of treaties have proved popular. First, since 1979, states have become aware of the possibility of using diplomatic or consular law to protect individuals; this has made Art. I of the respective Optional Protocols to the Diplomatic and Consular Convention popular among ICJ litigants.102 Second, the same has happened with Art. IX of the Genocide Convention.103 Because of the exacting standards of that convention, applicants have not 100 Rosenne (note 7), taking up developments until 2005, puts them at 37 and 13 respectively (644 and 707); to the latter figure have to be added cases brought under what Rosenne refers to as “framework agreements” (see 652 et seq.). 101 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) (New Application: 2002), in which Congo sought to found jurisdiction, amongst others, on the Genocide Convention, CEDAW, CERD, as well as the WHO and UNESCO Constitutions. In its Judgment of 3 February 2006, the Court did not entertain any of these claims, and held that it lacked jurisdiction, see ICJ Reports 2006, 6. 102 See e.g. Tehran Hostages (United States v. Iran), ICJ Reports 1979, 7, and 1980, 3; Breard (Paraguay v. United States, ICJ Reports 1998, 248; LaGrand (Germany v. United States), ICJ Reports 1999, 9 and 2001, 466, and Avena (Mexico v. United States), ICJ Reports 2003, 77 and 2004, 12; Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland), discontinued by Order of 9 June 2006, ICJ Reports 2006, 107. It is not without irony that the United States have started the trend which then turned against it. 103 In addition to the already mentioned Congo/Rwanda case (note 101), see Trial of Pakistani Prisoners of War (Pakistan v. India), removed from the list by Court Order of 15 December 1973, ICJ, Reports 1973, 347; the ten/eight (Kosovo) Legality of the Use of

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usually “won” their cases, but in most instances, Art. IX was the only jurisdictional clause at their disposal.104 (b) Jurisprudence regarding dispute settlement conventions is more difficult to evaluate. The 1928 General Act has been referred to in many applications, but the Court’s reluctance to accept it as a basis of the Court’s jurisdiction has meant that these applications were unsuccessful.105 As of 2007, regional dispute settlement conventions had been invoked five times,106 and European states, in particular, have yet to realize the jurisdictional potential of the 1957 Convention. (c) While the important conventions have not figured as prominently as one might have expected, a considerable number of compromissory clause cases has been brought under seemingly petty bilateral provisions. Treaties of Amity, FCN treaties or treaties providing for aspects of economic cooperation have been relied on, be it exclusively or as an addition to other bases of jurisdiction, in ten cases,107 Force cases brought by the Federal Republic of Yugoslavia against NATO member states, see e.g. Federal Republic of Yugoslavia v. Belgium, ICJ Reports 1999, 124, and 2004, 279; the (Bosnian) Genocide case, ICJ Reports 1993, 3, 1993, 325, 1996, 595, and – for the Judgment of 26 February 2007 – www.icj-cij.org; and the (Croatian) Genocide case, currently pending. 104 For further comment on this aspect see infra, D. II. 105 For details see Simma/Richemond (note 11), MN 7–15. 106 As of that date, the Court has entertained claims based on the Pact of Bogota in four cases: Border and Transborder Armed Actions (Nicaragua v. Costa Rica), removed from the list by Order of 19 August 1987, ICJ Reports 1987, 182; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007; Territorial and Maritime Dispute (Nicaragua v. Colombia), pending; and Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), pending. The European Dispute Settlement Convention has so far only been addressed in Certain Property (Liechtenstein v. Germany), ICJ Reports 2001, 565 and 2005, 6. 107 The relevant treaties were the following: the French-Lebanese Agreement Concerning Monetary and Financial Relations of 24 January 1948 in two cases: Electricité de Beyrouth (France v. Lebanon), discontinued by Order of 29 July 1954, ICJ Reports 1954, 107; Compagnie du Port, des Quais et des Entrepôts de Beyrouth (France v. Lebanon), discontinued by Order of 31 August 1960, ICJ Reports 1960, 186; the US-Italian Treaty of Friendship, Commerce and Navigation of 2 February 1948 in one case: Electronica Sicula (United States v. Italy), ICJ Reports 1989, 15; the US-Iranian Treaty of Amity, Economic Relations and Consular Rights of 15 August 1955 in two cases: Oil Platforms, ICJ Reports 1996, 803 and 2003, 161; Tehran Hostages (United States v. Iran), ICJ Reports 1979, 7 and 1980, 3; the US-Nicaraguan Treaty of Friendship, Commerce and Navigation of 21 January 1956 in one case: Nicaragua, ICJ Reports 1984, 392 and 1986, 14; the British-Greek Treaty of Commerce and Navigation of 10 November 1886, read in conjunction with the 1926 successor treaty between the two states in one case: Ambatielos (Greece v. United King-

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and the success rate of these claims has been better than for the important conventions.

2. Importance It remains to be seen whether this implies any judgment on the importance of ICJ cases under Art. 36(1) of the Statute. Compared to other bases of ICJ jurisdiction, have compromissory clauses been used to establish the Court’s jurisdiction in crucial cases of major relevance? Just as with the statistics just analyzed, the answer may be a matter of perspective. Since states have used relatively few of the existing compromissory clauses, they have clearly missed many chances to institute high profile cases. In fact, the blacklist of “important cases that were never brought” is rather long – it includes proceedings against Yugoslavia under CERD for its conduct in Kosovo, proceedings against Australia for breach of the Refugee Convention, or more recently against the United States under the Torture Convention. If they seriously wanted to, states could institute ICJ proceedings (admittedly without guaranteed jurisdictional success, but that is hardly ever guaranteed) in a whole range of high profile public interest proceedings. Yet arguments like these may be based on a wrong perspective. To assess the importance of compromissory clause cases, one has to compare them not to hypothetical cases idealists or litigation activists might hope for, but to real cases brought under the other headings of ICJ jurisdiction. And on this count, it seems that compromissory clauses have once more fared rather well. In fact, most of the major political disputes litigated before the world court have been brought on the basis of compromissory clauses. Any list of course is subjective, but one would certainly have to include the litigations in the (Bosnian) Genocide108 or the Tehran Hostages cases,109 the triple cases of Breard/LaGrand/Avena,110 and the bitter jurisdictional defeats in the South West Africa111 and Aegean Shelf cases112 – all of them depending upon the construction of a compromissory clause. This list probably even exceeds the number of highdom), ICJ Reports 1952, 28 and 1953, 10. The Colombian-Peruvian Protocol of Friendship and Co-operation of 24 May 1934 in one case: Haya de la Torre (Colombia v. Peru), ICJ Reports 1951, 17; and the Belgian-Spanish Treaty of Conciliation in two successive cases: Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain), discontinued by Order of 10 April 1961, ICJ Reports 1961, 9; Barcelona Traction, Light and Power Company, Ltd.: New Application (Belgium v. Spain), ICJ Reports 1964, 6 and 1970, 3. 108 See supra, note 103. 109 See supra, note 102. 110 See supra, note 102. 111 ICJ Reports 1962, 319, and 1966, 6. 112 ICJ Reports 1978, 3.

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profile cases brought under the optional clause (which would certainly include Nicaragua,113 although it was partly a compromissory clause case, and East Timor114). But in any event, it seems difficult to dispute that compromissory clauses have been the source of ICJ jurisdiction in some of its more dramatic cases, and in that respect, litigation on the basis of compromissory clauses has certainly been relevant in terms of quality.

3. Developments Lastly, what are major developments emerging from the Court’s jurisprudence? In this respect, even a cursory look at the list of contentious ICJ cases brings out one very clear result: the single most important development certainly is that the number of compromissory clause cases has markedly increased over time. In the early years of the ICJ, these tended to be an exception. Of the first ten cases concluded by the Court, three involved compromissory clauses;115 for the next ten, the figure is two,116 and this then goes down to one.117 Until 1960, the Court had only decided two compromissory clause cases on the merits.118 Things began to change in the 1960s, with cases like Barcelona Traction, South West Africa or Northern Cameroons.119 Since then, cases based on compromissory clauses have outnumbered those based on optional clause declarations or special agreements. Particularly impressive is the figure for the last seven years: in 21 of the 28 cases concluded (through a final decision or otherwise) between 2000 and 2007, applicants had exclusively or partly relied on a compromissory clause.120 Unlike with respect to the 113

ICJ Reports 1984, 392, and 1986, 14. ICJ Reports 1996, 90. 115 French Nationals in Egypt (France v. Egypt), discontinued by Order of 29 March 1950, ICJ Reports 1950, 59; Haya de la Torre (note 107); Ambatielos (note 107). 116 Electricité de Beyrouth (note 107); Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), ICJ Reports 1954, 19. 117 Compagnie du Port, des Quais et des Entrepôts de Beyrouth (note 107). 118 Ambatielos (note 107) and Haya de la Torre (note 107). 119 See Northern Cameroons (Cameroon v. United Kingdom), ICJ Reports 1963, 15. References to South West Africa and Barcelona Traction can be found in notes 111 and 107 respectively. 120 These are the following: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (note 3); (Bosnian) Genocide case (note 103); Status of a Diplomatic Envoy to the United Nations (note 102); Congo/Rwanda (New Application 2002) (note 101); Certain Property (note 106); the eight (Kosovo) Legality of the Use of Force cases brought against NATO member states (note 103); Avena (note 102); LaGrand 114

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treaty practice, ICJ jurisprudence thus reveals a marked trend towards compromissory clause cases. It is not easy to explain this development. At a very general level, it may be a result of the generally positive development of ICJ dispute settlement. It is visible from the Court’s docket that states today have more confidence in the Court than they used to have 20 or 30 years ago.121 At a very specific level, it may be coincidental: the extreme figure of 21 compromissory clause cases since 2000 is clearly a result of Serbia’s decision, in the Kosovo cases, to sue ten NATO member states simultaneously, with eight cases surviving the provisional measures stage. But beyond these very general and very specific reasons, two factors seem important: First, it seems that the number of politicized cases based on compromissory clauses is increasing. This is in line with a general tendency among states to use (or abuse) unilateral applications for essentially political reasons, as a means of raising public awareness and increasing pressure on respondent states.122 The Kosovo cases123 are examples in point, but Congo v. Rwanda probably is even more spectacular: Congo invoked eleven compromissory clauses, some of them far-fetched. The whole case shows that the applicant was clutching at jurisdictional straws, as was Serbia in the Kosovo cases. In the end, as is well-known, Congo and Serbia were unsuccessful, but their conduct may signal a new trend: states may begin to realize that even the existing framework of jurisdictional clauses offers a great potential for highly politicized ICJ proceedings. Whether this is a good or bad development may be a matter for debate. The proceedings in the (Bosnian) Genocide case indicate that the Court’s procedure may not be entirely

(note 102); Oil Platforms (note 107); Aerial Incident of 10 August 1999 (note 9); the two Lockerbie cases Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America and Libyan Arab Jamahiriya v. United Kingdom), ICJ Reports 1998, 9 and 115, discontinued by Orders of 10 October 2003, ICJ Reports 149 and 152; and the two initial cases concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi and Democratic Republic of the Congo v. Rwanda), discontinued by Orders of 30 January 2001 and ICJ Reports 2001, 3 and 6. 121 On this general trend see McWhinney (note 94), 122 et seq., as well as Jennings (note 94), MN 84–88 and 123–127. 122 For a detailed analysis of this phenomenon in recent use of force cases see C. D. Gray, The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua, European Journal of International Law (EJIL) 14 (2003), 867; for a more succinct observation see Rosenne (note 7), 647–648. 123 Supra, note 103.

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suited for confrontational proceedings of this kind.124 But surely it is an important tendency and, in principle, it would be a welcome development if states were to become aware of the Court’s jurisdictional potential. Second, states seem to realize the potential impact of regional dispute settlement conventions. As noted, there have been few cases so far under the two main examples, the Pact of Bogota and the European Dispute Settlement Convention.125 But four out of five applications invoking them are post-2000 cases.126 Just as with highly politicized disputes, states may be waking up. Whether this development is more than coincidental is too early to tell. But as a tentative conclusion, it may be said that the practical relevance of dispute settlement conventions is increasing.

III. An Assessment Whatever the explanations, the fact remains that the number of compromissory clause cases since 1946 has been considerable and that it has markedly increased over time. These factors are crucial for assessing the question of relevance. If they are duly taken into account, it is beyond doubt that, as far as ICJ proceedings are concerned, compromissory clauses have been extremely relevant, both in terms of quality and quantity of proceedings, and that they are more important today than ever before. Curiously, there are thus two diametrically opposed trends: states today are much less willing to conclude new compromissory clauses, but they are more willing than before to invoke existing ones. This curious asynchrony shows that, when it comes to the bases of ICJ jurisdiction, one should not focus too much on current developments: it may well be worth waiting for Prince Charming. This has to be taken into account when attempting to assess whether compromissory clauses are still relevant. The preceding analysis suggests that the answer must be in the affirmative. An impressive list of compromissory clauses exists, many of which cover important areas of international relations; and states have made use of these clauses in ICJ proceedings, especially in recent years. On the other hand, since states are much less willing today to conclude new compromissory clauses, the affirmative answer is not a triumphant “yes,” but rather muted. 124

For a very outspoken critique see J. Alvarez, Notes from the President: Burden of Proof, ASIL Newsletter, Spring 2007, available at www.asil.org/newsletter/president/pres 070625.html. 125 See supra, C. II. 1. (ii). 126 See supra, note 106, the only earlier case being Border and Transborder Armed Actions.

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D. Consequences of their Continued Relevance Finally, what are the consequences of this general assessment? In what respects does it shape the image of modern judicial dispute settlement? How does a dispute settlement system that crucially depends on compromissory clauses differ from other dispute settlement systems? In order to answer these questions, it is necessary to step back and speculate how things might have developed differently in a system of dispute settlement in which compromissory clauses played a more limited role. Three factors seem relevant:

I. Incremental Progress The first point to make is, in fact, rather comforting. It has to do with the “Sleeping Beauty” phenomenon referred to above – i.e. the fact that compromissory clauses exist ad infinitum in practice.127 In terms of the consequences, this means that the scope of jurisdiction at least remains static since states hardly ever denounce compromissory clauses; real setbacks are rare, even if progress is limited (as it seems to be today). As long as states continue to conclude at least some new compromissory clauses, jurisdiction increases incrementally over time. As noted before, this is not a logical or necessary development.128 Yet it is crucial as it distinguishes the Court’s compromissory clause jurisdiction from jurisdiction under the optional clause. Of course, the scope of optional clause jurisdiction may equally increase; in fact it has done so since the 1990s.129 But there have always been major setbacks: Important ICJ litigants like France, the United States, or Iran have withdrawn their declarations, other states like Canada have restricted theirs.130 Many optional clause cases (such as Nicaragua131 or Temple of Preah

127

Supra, C. I. 4. Ibid. 129 As of 2007, 65 states had accepted the Court’s jurisdiction pursuant to Art. 36(2). Detailed information on the time at which these declarations were made, as well as reservations, is available at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3; for scholarly comment see notably J. G. Merrills, The Optional Clause at Eighty, in: Ando et al. (note 54), 435. It is worth noting that in May 2008, Germany – after long and arduous debates – joined the list of states with optional clause declarations. For comment see C. J. Tams, Standpunkt: Deutschland und der Internationale Gerichtshof, Vereinte Nationen 2008, 153. 130 See already supra, C. I. 4. 131 Supra, note 107. 128

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Vihear132) could no longer be brought today. With respect to optional clause jurisdiction, there is no stability; with compromissory clauses, generally speaking, there is. Even for those unhappy with the current lack of new clauses, this should be a source of comfort.

II. A Piecemeal Approach to Dispute Settlement Second, it is equally clear that a system crucially dependant on compromissory clauses has major weaknesses. There are consequently no grounds for complacency. The most important point to make is that a system crucially dependant on compromissory clauses favors a “piecemeal approach” to dispute settlement.133 Since the ICJ’s jurisdiction depends on the willingness of states to agree on jurisdiction-conferring instruments, they can decide in which areas of international relations they accept the involvement of courts, and which they reserve to other, typically less formalized, forms of dispute settlement. As has been noted already, this means that compromissory clauses by no means comprehensively cover the entire field of international relations.134 In addition, it is worth noting that the coverage is rather uneven. Scores of treaties establish the ICJ’s jurisdiction over consular questions, but very few allow it to exercise its competence in contentious fields such as the laws of war. What is more, the recent decline of compromissory clauses also has its effects.135 Put very simplistically, if states have ceased to enter into bilateral clauses from the 1970s,136 this means that newly independent states that gained their independence in the 1960s are hardly ever bound by such bilateral clauses. Also, if multilateral clauses concluded from the 1980s lack teeth,137 it is only natural that the ICJ’s treaty-specific jurisdiction is very limited in modern fields of law that only began to be regulated in the 1980s – the most important example being international environmental law. Of course, things may not always be so clear in practice. By construing treaty clauses broadly (and convincing the Court of their approach) applicants have at times managed to have the Court decide on a surprisingly broad range of issues – 132

ICJ Reports 1961, 17, and 1962, 6. Others have preferred to speak of the “compartmentalization” of international law, see E. Cannizzaro/B. Bonafé, Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case, EJIL 16 (2005), 481, 484. 134 Supra, C. I. 2. 135 Supra, C. I. 3. 136 Supra, C. I. 3. (ii). 137 Supra, C. I. 3. (iii). 133

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the litigation of general questions relating to the use of force in the Oil Platforms case138 or of individual rights in Breard/LaGrand/Avena139 are prominent examples. That, however, is the result of the regular process of treaty interpretation in which the historical will of the parties may be less important than some litigants might wish; it shows that some treaties may be read more expansively than the drafters had anticipated. Yet the conceptual problem remains: the continued relevance of compromissory clauses favors a piecemeal approach. Depending on one’s perspective, this could be phrased as a strength or a weakness of the international regime of binding dispute resolution. It might be said to allow for tailor-made approaches to specific kinds of disputes. But the disadvantages seem to outweigh the advantages. In fact, recent experience underlines the problems of a piecemeal (“compartmentalized” or “fragmented”) system. Treatyspecific jurisdiction usually does not match the reality of a given dispute, especially if it is a major crisis. Typically, the ICJ’s jurisdiction does not cover the crisis as a whole, but there may well be treaties covering specific parts of it. If this is the case, applicants seeking an ICJ judgment (for whatever reason) may decide to present their case in terms of the given treaty. Frequently this artificially distorts the real dispute and places the parties and the Court in a difficult position – the DRC’s desperate attempts to present Rwanda’s invasion as a violation of the WHO or UNESCO Constitutions are a case in point.140 The same problem also affected the (Bosnian) Genocide case, where the Court had to evaluate the atrocities committed during the Bosnian civil war both through the lens of an interstate dispute and as genocide (and genocide only).141 In short, if a system is dominated by compromissory clauses, frequently only small parts of the real dispute come before the Court; a jurisdiction that is treaty-specific thus favors the artificial truncation of disputes. III. A Focus on Treaty Breaches A third and final consequence concerns the relationship between compromissory clauses and the sources of international law litigated before the Court. Unlike 138

Supra, note 107. Supra, note 103. 140 See Congo/Rwanda (New Application: 2002) (note 101), ICJ Reports 2006, 6, 39–46, paras. 94–109. 141 The Court itself was very clear on this point, see the Judgment of 26 February 2007 (note 2), para. 147. Cf. also for a briefer treatment M. Mennecke/C. J. Tams, The Genocide Case Before the International Court of Justice, Sicherheit und Frieden 25 (2007), 71, 71–72; M. Milanovic, State Responsibility for Genocide: A Follow-Up, EJIL 18 (2007), 669, 671–673. 139

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the previous point, it is hardly noted,142 but nevertheless crucial. A system based on compromissory clauses favors the litigation of treaty claims but typically does not allow states to bring claims based on violations of general international law. The reason for this is simple: dispute settlement provisions integrated into substantive treaties establish the Court’s jurisdiction in disputes concerning the application and/or interpretation of treaty provisions, but do not allow them to complain about violations of other rules of international law. As a consequence, applicant states have had to formulate their claim in terms of the treaty in practically all cases143 brought under compromissory clauses. Given the statistical importance of compromissory clause cases, it therefore does not come as a surprise that the ICJ has relatively rarely been entitled to entertain unilateral applications based on alleged violations of customary law. Of course, interstitially, general international law remains crucial in many cases, including those under compromissory clauses. Remedies depend on the customary rules of state responsibility,144 as do questions of attribution,145 and treaties may have to be interpreted in the light of general international law.146 But the number of compromissory clause cases centering on violations of customary international law is, indeed, very limited. This is yet another consequence of a dispute settlement system dominated by treaty-specific compromissory clauses. Put simply, such a system favors treaty over custom.

E. Concluding Remarks These tentative remarks conclude the assessment of compromissory clauses. They suggest that compromissory clauses not only remain relevant as a crucial source of ICJ jurisdiction, but that their relevance has an impact on the image of modern-day dispute settlement. When looking back, it is interesting to observe that, in many respects, these developments are but a consequence of decisions taken a century ago at the second 142

But see Rosenne (note 7), 648–649, for brief comment. The exception being compromissory clauses cases brought under dispute settlement conventions: if these cover all disputes, then applicants can use them to vindicate rights granted under general international law. 144 See e.g. the Court’s important discussion of remedies in LaGrand (note 102), ICJ Reports 2001, 466, 508–514 (paras. 117–127). 145 See e.g. the Court’s influential interpretation of the rules governing the attribution of conduct of armed movements in the Nicaragua and (Bosnian) Genocide cases (notes 107 and 2 respectively), ICJ Reports 1986, 14, 53–69, paras. 93–122, and paras. 379–415 of the Judgment of 26 February 2007. 146 See Art. 31(3)(c) VCLT. For a review of the Court’s case-law on all three types of interaction between treaty and custom see Cannizaro/Bonafé (note 133), 484–494. 143

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Hague Peace Conference of 1907. Of course, at the time, the relevance of compromissory clauses was not in doubt. Most delegations were willing to agree on one general and comprehensive compromissory clause which was to form the cornerstone of a multilateral arbitration treaty.147 But the Conference’s failure to persuade staunch opponents such as Germany or Austria-Hungary of this comprehensive approach paved the way for the gradual negotiation of more specific dispute settlement obligations. In fact, in his speech of 5 October 1907, the German delegate Marschall von Bieberstein, while rejecting the majority’s comprehensive approach, strongly argued that the way forward was to agree on bilateral arbitration conventions or to attach dispute settlement provisions to treaties regulating substantive aspects of international relations.148 At the time, this was a conservative minority view hardly in line with the idealist spirit, yet it foreshadowed future developments. In retrospect one cannot fail to accept that it was the conservative minority approach of 1907 that came to dominate the regime of 20th century dispute settlement. As a consequence, the move towards binding dispute settlement in international law has been a gradual and often cumbersome process, a series of small steps rather than giant leaps. The present paper has shown that, at the beginning of the 21st century, states frequently shy away from even taking small steps toward adding to the existing network of dispute settlement obligations. While that may be deplored, many steps have already been taken, and the existing network, though uneven and incomplete, is much more widespread than is often assumed. From the ICJ’s perspective, compromissory clauses therefore remain one of the crucial bases of jurisdiction. What is more, there are signs that states are beginning to realize that even the existing network permits them to seek binding decisions in a surprisingly broad range of disputes. Both factors taken together account for the continued relevance of compromissory clauses.

147

See Eyffinger (note 26), 217–219; Tams (note 26), 126–127; and – in much more detail – J. Delbrück, Internationale Gerichtsbarkeit. Zur Geschichte ihrer Entstehung und der Haltung Deutschlands, in: A. Zimmermann (ed.): Deutschland und die internationale Gerichtsbarkeit, 2004, 13. 148 Reproduced e.g. in: A. H. Fried, Die zweite Haager Konferenz, 1908, 61 et seq.

The Aegean Conflict – An Unsettled Dispute in Turkey’s EU Accession Course By Frank Hoffmeister*

A. Introduction In 1989, the European Commission opined that “[t]he examination of the political aspects of the accession of Turkey would be incomplete if it did not consider the negative effects of the dispute between Turkey and one Member State of the Community …”1 The dictum shows that a link between the Aegean Conflict and membership in the European Union was made by one of the European institutions from the very beginning of Turkey’s accession course. The purpose of this paper is to focus on the evolution and legal significance of this link. To that end, the historical background and the approaches of both sides with respect to a possible third party settlement will be briefly reviewed in Section B. Section C will then concentrate on the EU dimension before concluding in Section D.

B. Background I. Historical Development When Greece became independent in 1821/1830, it established sovereignty over the Hellenic mainland and the Western Aegean islands, whereas the Eastern Aegean islands remained part of the Ottoman Empire. This situation changed in the 20th century. The Dodecanese islands were first occupied by Italy in 1912 and then became part of Italy by virtue of Article 15 of the Treaty of Lausanne (1923) in the aftermath of the First World War. In 1947, Italy ceded them to Greece under the Paris Peace Treaty. The Dardanelles islands were occupied by Greece in 1912. The London Peace Treaty of 1913 entrusted Germany, Austria-Hungary, France, *

The views expressed in this article are those of the author alone. Commission opinion on Turkey’s request for accession to the Community, Brussels, 20 December 1989, SEC/1989/2290, 7. 1

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Great Britain, Italy and Russia to decide the fate of the islands. In 1914, the Six Powers awarded sovereignty over the majority of the islands (Lesbos/Chios/ Samothraki) to Greece, while Gökceada (Imvros) and Bozcaada (Tenedos) were returned to the Ottoman Empire. Article 12 of the 1923 Lausanne Treaty confirmed this decision. Accordingly, the Aegean Sea is characterized today by a number of scattered Greek islands, some of them located near the Turkish East coast. This unusual geographical situation lies at the heart of the present Aegean dispute between Greece and Turkey.

II. The Approaches of Greece and Turkey 1. The Scope of the Dispute A serious dispute emerged when Turkey granted licences in November 1973 and July 1976 to carry out explorations for petroleum in submarine areas of the Aegean Sea. In order to preserve its rights on the continental shelf derived from its islands, the Greek government seized both the UN Security Council and the International Court of Justice in August 1976. Under Resolution 395 (1976), the Security Council appealed to both sides to exercise utmost restraint and called on them to resume direct negotiations, whereas the ICJ declined to order interim measures in September 1976.2 The explosive political and military situation was then defused by a number of direct contacts between the two sides, eventually leading to the so-called “Berne agreement” of November 1976, in which both parties undertook to abstain from any initiative or act relating to the continental shelf of the Aegean Sea which might prejudice the negotiations.3 Notwithstanding this moratorium on unilateral acts, the two sides were far from agreeing on the actual delimitation of the continental shelf in the Aegean Sea. Rather, in the Berne Agreement the two parties also envisaged to “study state practice and international rules on this subject with a view to educing certain principles and practical criteria, which could be of use in the delimitation of the Continental shelf between the two countries.”4

2 Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, 3. 3 Ten-point agreement of 11 November 1976 between Greece and Turkey, signed in Berne, § 6, reprinted in: International Legal Materials 16 (1977), 13. 4 Berne Agreement (note 3), § 8.

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Whereas Greece maintains that this constitutes the sole dispute between the two countries in the Aegean,5 for Turkey, there are additional disputes. The Turkish Foreign Ministry mentions, in particular, disputes concerning the extent of the territorial sea, demilitarization of the Eastern Aegean islands, the use of the airspace and the status of certain insular features in the Aegean.6 In particular, Turkey challenges Greece’s right to extend the territorial sea of the Aegean islands from (currently) six nautical miles to twelve nautical miles. Turkey also considers that Greece is under a treaty obligation to demilitarize the Dardanelles islands, as this condition was laid down by the Great Powers in their 1914 decision. Moreover, Turkey considers that Greece has no title to use the ten nautical miles of airspace linked to the Greek islands. Finally, Turkey claims sovereignty over certain rocks in the Aegean Sea where, in the Turkish view, sovereignty had never been transferred to Greece. Hence, there is not only a dispute over a precisely defined legal question, but also a dispute over its scope.

2. The Applicable Law In addition, both sides seem to have divergent views on the applicable law. With respect to the delimitation of the continental shelf, Greece claims that its islands are entitled to a continental shelf. To support this claim it cites Article 121 (2) of the UN Convention on the Law of the Sea (UNCLOS), which it ratified on 21 July 1995. According to that provision, an island’s continental shelf is to be determined in accordance with the provisions of UNCLOS. According to Article 121 (3), only rocks which cannot sustain human habitation or economic life of their own do not have a continental shelf. Moreover, equidistance should be used as a legal principle when drawing the lines from the Aegean islands. Support for the equidistance principle is found in the Greek view in Articles 1 (b), 2 and 6 of the 1958 Geneva Convention on the Continental Shelf and customary law. In contrast, Turkey usually emphasizes the special circumstances of the Aegean as a semienclosed sea and asks for the application of equity. In the Turkish view, such islands are mere protuberances of the Anatolian continental shelf and do not have a continental shelf in themselves. Even if they were to have a continental shelf, “equitable solutions” are required on the basis of UNCLOS, as expressly men5

Embassy of Greece (Washington DC), Delimitation of the Continental Shelf, available at http://www.greekembassy.org under the folder “Turkey – Unilateral Turkish Claims in the Aegean” (visited 17 June 2008). 6 Ministry of Foreign Affairs of the Republic of Turkey, Background Note on Aegean Dispute, available at http://www.mfa.gov.tr/background-note-on-aegean-dispute.en.mfa (visited 17 June 2008).

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tioned in Article 83 (1) in fine for the delimitation of the continental shelf between states with opposite or adjacent coasts. Certainly, this dichotomy between “law” and “equity” is less clear cut when further analyzed.7 The ICJ found early on that the relevant law requires the application of equitable principles in the delimitation of the continental shelf between adjacent states.8 Accordingly, many governing legal principles of maritime boundary limitation accepted in international jurisprudence contain equity elements.9 One may cite, inter alia, the principle that no state may use straight baselines to cut off the territorial sea of another state from the high seas or an exclusive economic zone.10 Furthermore, the ICJ has underlined the principle of proportionality of the length of the coastlines and the equitableness of the solution.11 Finally, the ICJ has demonstrated its wariness of the vital security interests of each nation when, for example, it refused to allow the maritime boundary between Denmark and Norway to come too close to Jan Mayen island.12 Concerning the territorial sea, both countries maintain a zone of six nautical miles: Greece since 1936 and Turkey since 1964. Notwithstanding this status quo, Greece cites Article 3 UNCLOS, according to which every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, as measured from baselines determined in accordance with the Convention.13 Turkey considers this rule inapplicable for islands on its coast for reasons of national security. Since Article 15 UNCLOS accepts that a different regime for the delimitation of territorial sea between states with opposite or adjacent coasts applies, this would be even more applicable for adjacent islands. Turkey also 7

For a detailed analysis of the applicable law, see Wolff Heintschel von Heinegg, Der Ägäis Konflikt: die Abgrenzung des Festlandsockels zwischen Griechenland und der Türkei und das Problem der Inseln im Seevölkerrecht, 1989. 8 North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3, 47, para. 85; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, 18, 49, para. 50. 9 See Jon M. Van Dyke, The Aegean Sea dispute: options and avenues, Marine Policy 20 (1996), 397– 404 (400); Jean Angrand, Le conflit entre la Grèce et la Turquie au sujet du plateau continental de la mer Egée : Problèmes politiques et juridiques, Revue de droit international et de sciences diplomatiques 75 (1997), 101–130 (109). 10 Article 7 (6) UNCLOS. 11 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, 13, 53, paras. 74–75. 12 ICJ, Maritime Delimitation in the Area Between Greenland and Jan Mayen, Judgment, ICJ Reports 1993, 74–75, para. 81. 13 John Velos, The Aegean Continental Shelf Dispute between Greece and Turkey and the International Law Principles Applicable in the Delimitation of the Aegean Continental Shelf, Revue héllenique de droit international 40–41 (1987–1988), 101–139 (107–109).

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considers itself a “persistent objector” to the 12 nautical miles rule and argues that “regional state practice” in the Aegean limits all territorial sea claims to six nautical miles.14 Finally, Turkey considers that the extension of the territorial sea to 12 nautical miles would constitute an abuse of rights by Greece (a notion mentioned in Article 300 UNCLOS). According to Greece the dispute over airspace would have to be resolved in application by ordinary rules on sovereign exercise of rights over one’s territory. Moreover, when Greece proclaimed the ten miles zone in 1931, Turkey remained silent until 1974. In contrast, Turkey insists that Greek air vessels can only benefit from the six nautical miles territorial sea belonging to Greece and contends that it has never acquiesced in a Greek right going beyond that distance.15 Only in regard to the determination of sovereignty over certain features in the Aegean Sea does the applicable law appear to be uncontested, as this question is governed by the relevant peace treaties and the legal status of two documents signed between Turkey and Italy in 1932.16 The same is true with regard to the question of the demilitarization of Lemnos and Samothrace, to which the provisions of the 1923 Lausanne Treaty, the 1936 Montreux Convention regulating the legal status of the Turkish straits and the 1947 Peace Treaty are applicable.17

3. Third Party Settlement Finally, both sides have a different approach to third party settlement. As is well-known, under Article 36 of the ICJ Statute, the jurisdiction of the Court must be accepted by both sides. Such acceptance may be expressed in different ways. The easiest way is to submit a case jointly to the Court by adopting a special compromise under Article 36 (5) ICJ Statute. However, as the ICJ held in the Aegean 14

Van Dyke (note 9), 401. Hüseyin Pazarci, Le contentieux Gréco-Turc en mer Egée, Cahiers d’études sur la Méditerranée orientale et le monde turco-iranien 1986, 1–21 (13–15). 16 See the relevant discussions from the Greek author Evangelos Raftopoulos, The Crisis over the Imia Rocka and the Aegean Sea Regime: International Law as a Language of Common Interest, The International Journal of Marine and Coastal Law 12 (1997), 427– 446 (432–437), on the one hand, and Turkish Ministry of Foreign Affairs, Background Note (note 6), 5–6, on the other hand. 17 See the relevant discussions from the Greek author Constantin P. Economides, La prétendue obligation de demilitarisation de l’île de Lemnos, Revue Hellenique de Droit International 34 (1981), 5–23, on the one hand, and the Turkish author Deniz Bölükbasi, Turkey and Greece – The Aegean Disputes, a unique case in international law, 2004, 662– 822, on the other hand. 15

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Sea Continental Shelf case, a press-communiqué by the two Prime Ministers of 31 May 1975 could not be seen as forming a common agreement to seize the Court.18 Therefore, Greece and Turkey are left with their “Berne Agreement” of 1976, according to which they shall seek to approach the Court by common agreement. According to Article 36 (1) of the ICJ Statute, another possibility to exercise jurisdiction exists where an international convention, to which both states are parties, provides for such jurisdiction. However, this possibility also could not be realized until now. In particular, the Greek attempt to invoke Article 17 of the 1928 Hague Convention on the Pacific Settlement of International Disputes failed due to its own reservation concerning “disputes relating to the territorial status of Greece.”19 Finally, the Court would be competent if both sides had made a declaration under Article 36 (2) of the ICJ Statute. While Greece made such a declaration on December 1993 for any dispute excluding those relating to defensive military action taken by the Hellenic Republic for reasons of national defense, Turkey withdrew its declaration to the Court in 1972.20 In sum, none of the possible avenues to approach the International Court of Justice has been used successfully to date.

C. The EU Dimension I. The Peaceful Settlement of Border Disputes as a Criterion for Accession According to Article 49 (1) EU, any European state which respects the principles set out in Article 6 (1) EU may apply to become a member of the Union. This is a reference to “the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.” In addition to these political criteria, the European Council meeting in Copenhagen (1993) required candidate countries to demonstrate a functioning market economy, the ability to withstand competitive pressure (economic criteria) and the ability to assume the obligations of membership (acquis criteria). In this respect, the interesting question arises whether the peaceful settlement of border disputes forms part of the accession conditionality. From the very foundation of the Community, there was a common understanding that such disputes should be resolved between member states in a spirit of friendship and reconciliation. When the Treaty establishing the European Coal and Steel Community was 18 19 20

Aegean Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, 3, 42–45. Ibid., 38, para. 90. Bölükbasi (note 17), 78.

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signed in April 1951, the Governments of France and the Federal Republic of Germany exchanged letters on the river Saar, which were annexed to the Treaty.21 The French Foreign Minister Schuman and the German Chancellor and Foreign Minister Adenauer confirmed that their signature of the Treaty did not express recognition of the then status of the Saar and was without prejudice to the final status of the Saar. In 1986, Spain had to accept that the United Kingdom exercises sovereignty over Gibraltar. On the other hand, the European Community did not require candidate states to settle border disputes with third countries. Hence, Greece acceded in 1981 without having been required to settle the Aegean dispute with Turkey. The Commission only recommended22 that the EC should urge Greece and Turkey to reach just and lasting solutions.23 Against that background, the above statement from the European Commission in 1989 on the Turkish application24 marks the beginning of a new development. In connection with the 1993–1994 Stability Pact for Europe, the Council requested EU candidate countries to peacefully settle border disputes among themselves.25 This initiative, originating from the French Prime Minister Balladur, was specifically directed toward the central and eastern European candidate countries, which were asked to resolve their bilateral issues before becoming members of the European Union. A noteworthy result of this approach was the decision of Hungary and Slovakia to submit their dispute over the Gabþíkovo project to the International Court of Justice. In its respective Opinions of July 1997 on the Slovak and Hungarian applications, the Commission noted this decision with satisfaction under the sub-heading “Common Foreign and Security Policy”26 in the acquis chapter of the opinion. Moreover, the Commission generalized this point in the Agenda’s strategy by observing that enlargement should not mean importing border conflicts. Accordingly, the Commission considered that all candidate 21 Office for Official Publications of the European Communities, European Union – Selected instruments taken from the Treaty, Book I, vol. II, Luxemburg 1995, Exchange of letters between the Government of the Federal Republic of Germany and the Government of the French Republic concerning the Saar, 161. 22 Commission Opinion on Greek Application for Membership, Bulletin of the European Communities, Supplement 2/1976, 8. 23 Panos Tsakaloyannis, The European Community and the Greek-Turkish dispute, Journal of Common Market Studies 29 (1980), 35–54 (46–47). 24 See note 1. 25 Council Decision 93/728/CFSP of 20 December 1993, OJ 1993, L 339/1, and Council Decision 94/367/CFSP of 14 June 1994, OJ 1994 L 165, 2. 26 European Commission, Agenda 2000, Opinion on Slovakia’s Application for Membership of the European Union, COM 1997 (2000), Chapter 3.8, available at http://ec. europa.eu/enlargement/archives/pdf/dwn/opinions/slovakia/sk-op_en.pdf.

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countries should, before accession negotiations are completed, commit themselves to submit unconditionally to compulsory jurisdiction, including advance ruling of the International Court of Justice in any present or future disputes of this nature, as Hungary and Slovakia had already done.27 It can therefore be concluded that the peaceful settlement of border disputes has been included into the EU’s conditions for accession from 1997 onwards. While the institutions did not cite a precise legal foundation for that criterion, one may assume that it is linked to the “rule of law” within the meaning of Article 6 (1) EU. In that perspective, the expression “rule of law” not only encompasses certain principles relating to the separation and exercise of powers within a state,28 but also emphasizes a certain degree of commitment to the “international rule of law.” Since the peaceful settlement of disputes, as set out in Article 2 (3) and Article 33 of the UN Charter, can be seen as a cornerstone of the contemporary international law system to which the EU is attached by virtue of Article 11 (1) third indent EU, it is only consequent to request from candidate countries to abide by this principle in relation to outstanding border disputes with EU member states or other candidate countries.

II. The Aegean Conflict in Turkey’s Accession Course Although this link was not yet relevant for Turkey in 1997, as it lacked candidate status at that time, the issue became central for EU leaders two years later. In Helsinki (1999), the European Council granted candidate status to Turkey and concluded: In this respect the European Council stresses the principle of peaceful settlement of disputes in accordance with the United Nations Charter and urges candidate States to make every effort to resolve any outstanding border disputes and other related issues. Failing this they should within a reasonable time bring the dispute to the International Court of Justice. The European Council will review the situation relating to any outstanding disputes, in particular concerning the repercussions on the accession process and in order to promote their settlement through the International Court of Justice, at the latest by the end of 2004.29

27

European Commission, Agenda 2000 for a stronger and wider Union, Part two, II. 8 (Border Disputes), available at http://www.ena.lu/commission_communication_agenda 2000_stronger_wider_union_1997-020006131.html. 28 Frank Hoffmeister, Changing requirements for membership, in: Andrea Ott/Kirstyn Inglis (eds.), Handbook on European Enlargement, A Commentary on the enlargement process, 2004, 90–102 (93–94). 29 European Council of Helsinki (12./13. December 1999), Conclusions, para. 12.

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In a side letter handed over from the Finnish Prime Minister Lipponen to the Turkish Prime Minister Ecevit, the EU gave a further explanation of the date of 2004. The EU side underlined that there is no expectation that the dispute is actually settled by the ICJ by that date; rather the EU would review any progress achieved so far.30 The EU accession perspective and improved bilateral Turkish-Greek relations under the reign of the Foreign Ministers Ismael Cem and Iorgios Papandreou triggered new diplomatic efforts in the Aegean dispute. Between 2002 and 2004 explanatory talks at the level of foreign affairs undersecretaries were held. Against that development, the European Council of Brussels, at the end of 2004, was satisfied with the progress achieved so far and decided to revert to the issue “as appropriate.”31 In October 2005, when the Intergovernmental Conference between the EU member states and Turkey was convened to open accession negotiations, the EU side adopted a so-called “negotiation framework.” This document laid down certain negotiation principles and contained, inter alia, the following statement: Turkey’s progress in preparing for accession will be measured against the following requirements (…) – Turkey’s unequivocal commitment to good neighborly relations and its undertaking to resolve any outstanding dispute in conformity with the principle of peaceful settlement of disputes in accordance with the United Nations Charter, including if necessary, jurisdiction of the International Court of Justice.32

It thus became clear that the Aegean conflict would have to be resolved prior to Turkey’s accession. At the same time, however, the European Union did not specify a certain date by which the settlement must be reached. Furthermore, the EU did not take a position on the scope of the dispute. Finally, the European Union did not indicate a preference for any particular means of peaceful settlement. Submitting the dispute to the International Court of Justice is mentioned as one option “if necessary.” Concluding a bilateral agreement, as the EU member states Ireland and the United Kingdom did, for example, in 1988,33 or resorting to binding third party arbitration would be perfectly in line with the EU’s negotiation framework. Although the EU is neutral with respect to a number of parameters of the Aegean dispute, the situation is more delicate as to the applicable law. This deserves a 30

Bölükbasi (note 17), 83–84. European Council of Brussels, Presidency conclusions of 16/17 December 2004, para. 20. 32 General Affairs Council, Conclusions of 3 October 2005, Negotiation framework with Turkey, para. 6, 2nd indent. 33 Emmanuel Decaux, L’accord anglo-irlandais à la délimitation du plateau continental, Annuaire français de Droit international XXXVI (1990) 757–776. 31

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few explanations as the connection is more indirect. As is well known, the negotiations are structured according to “chapters” covering particular subject matter. Before any chapter is “opened,” the European Commission submits a “screening report” to the Council and makes recommendations on so-called “opening benchmarks.” These benchmarks lay down specific requirements a candidate country is expected to meet before actual negotiations can start. One of these negotiation chapters is devoted to fisheries, given the large number of EU acquis existing in the field. In this respect, the question arose in 2007–2008 whether or not Turkey should be required to ratify the UN Convention on the Law of the Sea. The latter is ratified by the EU member states34 and the Community35 alike. On the one hand, the EU has an interest that new member states become parties to such “mixed agreements” in order to support the coordination of EU action in all areas subject to the agreement in question. On the other hand, it is hard to convince a candidate country to ratify a convention like UNCLOS, which it perceives as undermining its position with respect to a long-standing dispute.36

D. Conclusion The Aegean conflict is an unsettled dispute over the scope, applicable law and appropriate means of settlement. From an EU perspective, the principle of peaceful settlement of border disputes between a candidate country and a member state or another candidate country now represents a condition of pre-accession status. The EU hereby aims at preventing the import of unsettled disputes into the organization and, at the same time, supports an important pillar of contemporary international law. While the EU remains as neutral as possible on the parameters of the conflict, it also insists without ambiguity that the resolution of the conflict is necessary before Turkey can actually join the European Union. In conclusion, one is tempted to say that such a powerful display of support by a non-state actor for the peaceful settlement of disputes was not only not foreseen by the state-centered negotiators at the 1907 Hague Peace Conference, it would not even have been conceived of as possible. 34

From the old fifteen member states, Denmark ratified only in 2004; from the new 12 member states, Lithuania (2003), Latvia (2004) and Estonia (2005) ratified the Convention after signature of the Accession Treaty. 35 Council Decision 98/382/1998 of 23 March 1998, OJ 1998, L 179, 1. 36 In this respect one may note that the Turkish government already sought, by a note verbale of 22 May 1974, to convince the Community of its view on the delimitation of the continental shelf and asked for close collaboration of the Community at the Third United Nations Conference on the Law of the Sea on this matter.

The European Court of Justice Getting in the Way: The Abortive MOX Plant Arbitration By Oliver Dörr As international lawyers, we all want there to be as much international law as possible. And as law professors, who in their academic world are generally fond of international law being enforced by legal means, we usually are very fond of international courts and tribunals. In fact, we like to explain to our students that the more numerous international courts there are that can effectively be seized by states or even individuals, the more valuable international law would be, the better it would function. Or, as Thomas Buergenthal once put it, to have a great number of judicial institutions is a good thing because it “socialize[s] states … to the idea of international adjudication.”1 But we also know by now that it is not as simple as that. As one of the endemic problems that international law faces today we usually refer to the phenomenon of “fragmentation”2 as a problem of substantive law: an increasing number of special treaty regimes covering certain areas of international law makes it increasingly difficult to consider them as parts of one coherent legal system. Quite naturally this also has a procedural side to it. In a modern world, an international legal order that is legally fragmented is an order haunted by its multitude of courts. Thus, the “legalese” of international lawyers today encompasses the term “proliferation” not only with respect to nuclear weapons, but also to international courts and tribunals,3 or as they say much more profanely: “Too many cooks spoil the broth.” I 1 Th. Buergenthal, Proliferation of International Courts and Tribunals: Is It Good or Bad?, Leiden Journal of International Law 14 (2001), 267 (271). 2 Cf. e.g. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (13 April 2006); C. Thiele, Fragmentierung des Völkerrechts als Herausforderung für die Staatengemeinschaft, Archiv des Völkerrechts 46 (2008), 1–41. 3 Thus, e.g., the title of Buergenthal’s article (note 1); various articles in the symposium issue “The Proliferation of International Tribunals: Piecing Together the Puzzle,” New York University Journal of International Law and Politics 31 (1999), 679 et seq.; S. Spelliscy, The Proliferation of International Tribunals: A Chink in the Armor, Columbia

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have been asked to report on a case where several cooks have been involved, but one of them said he was the only chef de cuisine and sent the other cooks out of the kitchen. How does that fit into the picture of international law, i.e. the universal system of cooks and kitchens?

A. Conflicts of Courts in International Law In modern international law the parallel jurisdiction of judicial bodies in a given dispute has become something of a regular possibility. But, as we all know, parallel proceedings must not necessarily lead to a conflict of jurisdiction, let alone to conflicting judgments.4 Different situations of conflict, or rather potential conflict, can be distinguished. A jurisdictional conflict may arise when two dispute settlement procedures are applicable to the same issues of the same dispute. Conflict can be formally avoided if one of the procedures involved takes priority over the other, for example because the other regime contains a clause accepting such priority. Examples for this would seem to be Art. 35 para. 2 lit. b) ECHR or Art. 281, 282 UNCLOS. Second, a conflict of judgments can normally not arise where the jurisdiction of the judicial institutions involved is narrowly limited ratione materiae and they both do not get into each other’s way. Here the same dispute between the same parties may be decided in respect of different issues. Problems arise, however, when different proceedings concerning the same dispute are concerned with treaty obligations which are formally different, but are essentially of identical scope and content. This seems to have been the case in the Southern Bluefin Tuna case where the Arbitral Tribunal constituted under Annex VII UNCLOS held that the dispute discussed under UNCLOS was essentially the same as the one arising under the Tuna Convention.5 Also parallel proceedings before different international courts or tribunals may concern different issues, but nevertheless be inconsistent, when both bodies are applying identical or similar legal norms to the same dispute. The Swordfish disJournal of Transnational Law 40 (2001), 143; R. Churchill/J. Scott, The MOX Plant Litigation: The First Half-Life, International and Comparative Law Quarterly 53 (2004), 643–676 (652). 4 J. Finke, Competing Jurisdiction of International Courts and Tribunals in Light of the MOX Plant Dispute, German Yearbook of International Law 49 (2006), 307–326 (310). 5 Arbitral Tribunal, Southern Bluefin Tuna case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para. 54, reprinted in International Legal Materials 39 (2000), 1359.

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pute between the European Community and Chile of 2000/2001 is usually taken as an example for this:6 while the Community submitted the case of the denial of port access to a WTO panel and both parties turned to the dispute settlement system of UNCLOS, both could have argued a violation of treaty obligations to cooperate. And finally, parallel proceedings concerning the same dispute may, although the subject-matter is not the same, be closely linked to each other in that the ruling of one court or tribunal depends on that of another. This particular problem is aptly illustrated by the MOX Plant dispute between Ireland and the United Kingdom, which I am supposed to take a closer look at.

B. The MOX Plant Dispute The dispute arose between the two countries on the construction and operation of a MOX Plant at a site at Sellafield on the coast of Cumbria in north-west England, facing onto the Irish sea. In the plant, plutonium is recycled from spent nuclear material and converted into mixed oxide fuel (MOX). Although the European Commission had concluded in 1997 that the planned disposal of radioactive waste was not likely to result in significant contamination,7 Ireland questioned the environmental statements presented by the operating company and, moreover, requested more information on the whole project. In 2001, when operations at Sellafield were imminent, Ireland brought cases before two different international fora. First, it instituted proceedings under the so-called OSPAR Convention, i.e. the Convention for the Protection of the Maritime Environment of the North-East Atlantic. An arbitral tribunal held in early July 2003 that it had jurisdiction but dismissed Ireland’s claim regarding access to information as being unfounded.8 Simultaneously Ireland instituted proceedings, under Art. 287 UNCLOS, before an arbitral tribunal, provided for in Annex VII to UNCLOS. It claimed that the UK had violated several obligations under the Convention concerning the protection of the marine environment, the prevention and control of pollution, and cooperation between the two states. While the International Tribunal of the Law of the Sea (ITLOS), in an order on interim measures, held that the arbitral tribunal to be 6

Finke (note 4), 314 et seq. For details on that case cf. for example J. Neumann, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 61 (2001), 529 et seq. 7 Opinion of 11 February 1997, Official Journal C 68/4. 8 Arbitral Tribunal, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. UK), Final Award, 2 July 2003, reprinted in International Legal Materials 42 (2003), 1118.

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constituted had prima facie jurisdiction, thereby rejecting the British objection based on Art. 282 UNCLOS and the impact of European Community law,9 the Arbitral Tribunal in its Order No. 3 of June 2003 considered that impact much more closely. It acknowledged that UNCLOS is, as under European Community law, a mixed agreement, since both the Community and its member states share the competence over the matters covered by it. Thus, the jurisdiction of the Tribunal was, pursuant to Art. 282 UNCLOS, dependent on the distribution of competences between the Community and the member states: if the Community competences were to extend to the matters before the Tribunal, the latter’s jurisdiction could be precluded by virtue of Art. 282. If the Community competence were even to be exclusive as to those matters, Ireland might possibly be without legal standing in the arbitration procedure. Consequently, the Tribunal’s jurisdiction was dependent on the interpretation of the EC Treaty, for which the final and authoritative competence lies with the European Court of Justice. The Tribunal therefore considered it appropriate, in order to avoid the result of two conflicting decisions on the issue, to suspend further proceedings on the matter.10 Interestingly enough, it explicitly referred in this context to “considerations of mutual respect and comity which should prevail between judicial institutions.”11 In the meantime, the European Commission had brought infringement proceedings under Art. 226 EC Treaty against Ireland for actually bringing the case before the Arbitral Tribunal. The Commission alleged a violation of the exclusive jurisdiction of the European Court to settle disputes between member states laid down in Art. 292 EC Treaty. This provision prohibits EC member states from submitting a dispute concerning the interpretation or application of the EC Treaty to any method of settlement other than those provided for in that Treaty, i.e. other than to the European Court of Justice. After the Court had upheld the Commission’s case, the Arbitral Tribunal in January 2007 formalized the suspension of proceedings and lifted the reporting requirements laid upon the parties.12

9

ITLOS, MOX Plant (Ireland v. United Kingdom), Order of 3 December 2001, International Legal Materials 41 (2002), 405, para. 89. 10 Arbitral Tribunal, The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, 24 June 2003, para. 29 (reprinted in International Legal Materials 42 (2003), 1187); further suspension by Order No. 4, 14 November 2003. 11 Arbitral Tribunal (note 10), para. 28. 12 Arbitral Tribunal, The MOX Plant Case (Ireland v. United Kingdom), Order No. 5, 22 January 2007.

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C. Exclusive Jurisdiction under European Community Law By being transferred from arbitration under UNCLOS to jurisdiction under EC law, the legal focus of the dispute changed: at issue before the European Court was not so much the question whether the Community had exclusive competence with regard to the prevention of marine pollution, so that Ireland lacked standing to bring a claim in this respect; rather, the Luxembourg court simply asked whether the Community had any competence at all in those matters, since, in its view, the very existence of such a competence, be it shared or exclusive, would lead to the application of Art. 292 EC. Not surprisingly, the Court found such competence to exist, because the Community, when it acceded to UNCLOS, exercised its powers on environmental protection under Art. 175 (1) EC and because prevention of marine pollution was largely covered by Community measures.13 Thus, UNCLOS provisions with respect to that subject form part of the Community legal order (Art. 300 para. 7 EC) and therefore fall within the scope of Art. 292 EC. By carrying the dispute on the application of those provisions to a binding procedure outside the Community, Ireland had violated the exclusive jurisdiction of the European Court and its obligations under the EC Treaty. By insisting on its judicial monopoly in the relations between member states, the European Court once more confirmed the autonomy of the Community legal order and the need for its uniform application. This principle of autonomy is not only one of the foundations of European integration, it also has a constitutional character in the treaty-based constitution of the European Union. Internally, this principle of autonomy is secured by the precedence of Community law and by the European Court having the final say on its interpretation. Externally, the most important safeguard for the autonomy of Community law is laid down in Art. 292 EC which has now been so rigidly confirmed by the Court: when it comes to Community law, no dispute between states may be referred to a judicial institution outside the Community, as the member states have insofar agreed to turn to the European Court in Luxembourg as their sole and final umpire. Since this monopoly now also applies to mixed agreements, and as the number and importance of mixed agreements seems to be growing, you may say that the European Court in the MOX Plant case expanded its exclusive jurisdiction ratione materiae.14 And since the scope of Community law still seems to be widening, 13 Such as e.g. Council Directive 85/337 on the assessment of the environmental effects of certain public and private projects. 14 C. Romano, American Journal of International Law 101 (2007), 171 (176).

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there may be virtually no area of law left where member states are allowed to resort to external dispute settlement procedures. This, however, restricts them merely in their mutual relations with one another and does not relate to disputes with third states. For the sake of the proper functioning of the Community legal order this seems to be a price well worth paying, even more so since inside that order Art. 227 EC Treaty provides for a reasonably efficient settlement procedure. The judicial exclusivity laid down in the EC Treaty is met on the international level by a suitable counterpart in Art. 282 UNCLOS, according to which binding settlement procedures outside UNCLOS basically take precedence over UNCLOS procedures. The provision makes clear that, from the perspective of the international law of the sea, an exclusive judicial competence, such as the one laid down in Art. 292 EC Treaty, does not hinder the states concerned to participate in universal treaty regimes.

D. Final Remarks At first sight, we might conclude that in recent international jurisprudence there was hardly any case which came as close to a “win-win-situation” as the MOX Plant dispute. If you look at the case as an international lawyer, the outcome of this dispute seems to know only winners. The European Court has confirmed its judicial monopoly as between member states and thereby strengthened the autonomy of the Community legal order. This order, which just lost its chance of being officially designated as a “constitutional” order, received at least support for one of its fundamental – constitutional – principles. The dispute settlement system of UNCLOS proved its wise flexibility with its deferential conflict clause in Art. 282 and an arbitral tribunal adopting a very sensible approach of dealing with parallel proceedings before different international bodies. The outcome of the case may even serve as an element in developing a legal duty of international courts to cooperate as much as possible,15 although this remains to be seen. At a second glance, however, Ireland still has got that problem off its east coast.

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Finke (note 4), 326.

Panel Discussion: Has International Law Civilized Conflicts since 1907? Remarks by Christine Chinkin In this last panel we were asked to reflect on the presentations and discussions during the conference on whether or not international law can be said to have civilized conflict. What I am going to do is to look briefly at two categories of persons that were not present at all at The Hague in 1907 – neither women nor children participated in the Conference, nor were they directly addressed in the substantive provisions of the Hague Regulations. In assessing whether conflict has indeed been “civilized” in some sense in the century since 1907, it is important that women and children have at least become visible. In this context I have to say that I am breaking a rule of my own making. In general I prefer not to talk about “women and children” in the same breath because of the unfortunate connotations it creates. However, as children have not been mentioned once in the entire Conference and women have only been mentioned three times, I think it is appropriate for once to do so. I might add that the references to women were hardly informative: Sleeping Beauty was mentioned by two participants and there was a generic reference to rape, which I took as referring to women. It is, of course, also important to remember that men, too, are raped in armed conflict and that is rarely mentioned. Frequently, the changed legal response to the crimes and atrocities committed against women and children in armed conflict is claimed as one of the great success stories of international humanitarian law of the twentieth century. As I said there is no mention of women and children in The Hague Regulations other than indirectly in Article 46, which required “family honor and rights” to be respected. This carries within it the notion of women and children as members of the family and, of course, emphasizes the concept of “honor” that has been included in military codes since at least the Middle Ages. This is also a step back from the Lieber Code, which made specific mention of women and of the criminality of rape in conflict. Since 1907, we can identify two trends in the civilizing of armed conflict with respect to women and children. The first is that if there is an assumption (and I

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think this is a questionable assumption) that legal reform is in fact civilizing, then there has been some success in the progressive inclusion of legal provisions with respect to the protection of women in Geneva Convention IV, Article 27 and Protocol No. 1, Article 76; in the assertion that violence against women in armed conflict violates human rights (for example at Vienna in 1993, by the General Assembly in 1994 and in Beijing in 1995); and the explicit recognition of forms of sexual violence against women as war crimes and crimes against humanity in the jurisprudence of the ICTY and ICTR, the Rome Statute (1998) and the Security Council in resolution 1325 (2000). This progression has also developed the concept of rape and sexual violence as a constituent element of torture, genocide and slavery. What is also important is the shift from the notion of protection of women and women’s honor (without specifying that failure to do so constitutes a grave breach of the Geneva Conventions) to that of prohibition and explicit international criminalization of acts of gender-based violence committed against women because they are women. Similarly, with respect to children, we can see progress through international humanitarian law and human rights law. There are some protective measures for children throughout the Geneva Conventions that are expanded in Protocol I, Articles 77 and 78. The Children’s Convention, Article 38, brings international humanitarian law directly into a human rights instrument and the 2000 Protocol to the Children’s Convention on the involvement of children in armed conflict seeks to strengthen implementation of the Convention and to increase the protection of children during armed conflicts, especially with respect to child soldiers. Nevertheless, children are rarely explicitly mentioned in the jurisprudence of the ICTY and ICTR, although it is apparent from the facts of many instances that children have been the victims of particular forms of attacks. However, the prosecutor of the ICC has made it clear that the issue of child soldiers is going to be a major focus of some of the first cases before the ICC. Institutionally the grave situation of children and women in armed conflict has been highlighted by the establishment of the positions of the Special Representative of the Secretary-General for children and armed conflict and the UN Special Rapporteur on violence against women. So, yes, we have had considerable success through the clear development of positive law and institutional support. The second way in which armed conflict is potentially becoming more civilized with respect to women is less clear cut and is not grounded in formal instruments. It is the acceptance – at least in legal commentaries, in academic circles and international institutions – that harm caused to women and girls in armed conflict is not just an unfortunate side effect of conflict, of military men seeking sexual activity they think they deserve and which others anticipate. It is now recognized, I think,

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that attacks upon women and gender-based violence are instrumental and form an integral part of conflict. They are deliberately inflicted strategies of terror and humiliation. Women are especially targeted, particularly in conflicts where identity and ethnic cleansing are central. Violent attacks against women are a method of ethnic cleansing and further the defeat of the other side. The deep and long standing silence on sexual violence in armed conflict has been broken and there is now recognition of the enormity of such crimes – in the numbers of their commission and their effects. This recognition is, in fact, only very recent. Even in the conflict that led to the creation of Bangladesh in 1971 there was remarkably little reference to the thousands upon thousands of women and girls subjected to sexual violence. The conflicts surrounding the disintegration of the Former Yugoslavia in the early 1990s were the major turning point in the recognition of such crimes and if there were more time, it would be interesting to reflect on why that was the case. I would like to briefly make two other points. First, there is a growing gendered analysis of all aspects of the law of armed conflict, including the first pillar of The Hague Conference that was discussed yesterday: disarmament. There are many issues with respect to arms, the arms trade and disarmament that impact women in gendered ways, especially the prevalence of small arms and associated forms of gendered violence. The slow process with respect to the eradication and control of small arms is certainly a limitation on the civilization of armed conflict. Second, what has also changed is the recognition of the prevalence of sexual violence against men in armed conflict and the need to respond to it. I would argue that this, too, has come about, at least in part, because of the influence of the women’s movement and the campaigns addressing sexual violence against women. I believe that the sexualized and racialized violence seen at Abu-Ghraib was so readily recognized as torture because of the women’s movement and I am not sure this would have been the case even 20 years ago. Another general point is the role of civil society in these developments. We have not really talked much about civil society at this conference other than the prominence and role of the ICRC. But civil society was a force at The Hague in 1899 and 1907 and has continued to be throughout the century. Judge Bruno Simma referred to the peace movement earlier this afternoon. Women, of course, were major players in that movement. What I have said so far has addressed the trends for civilizing conflict, but in the last two minutes I must turn to the bad news. What is absolutely clear is that what is happening to women and children on the ground in the numerous arenas of conflict remains completely uncivilized and barbaric. I feel that the internalization that was talked about the other day has really had remarkably little effect. There continue to be numerous instances of rape and extreme sexual violence in armed

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conflict around the globe, but perhaps the most horrific is that in parts of the DRC, which has reached unimaginable levels, and with extremely high rates of HIV/ AIDS. We have also mentioned the concept of the “ius post bellum” and the obligations upon states in that post-conflict period. In this, as well, issues of gender security have been given too little attention. Even though there have been changes in the positive law and jurisprudence, very few trials actually fully explore or even touch upon sexual violence. The climate of impunity remains only too prevalent. We have talked about occupation and the obligations upon occupying states, but the need to ensure gender security at that time has not been discussed at all. Afghanistan and Iraq provide examples. Certainly, some forms of gendered violence have become much less in those countries, but others in the so-called post-conflict period have become greater, especially when we take account of the growth of movements that limit women’s access to public space. This undermines women’s right to employment, forcing them into poverty and leaving them few options, often only begging or prostitution. Vulnerability to being trafficked is another regular form of post-conflict gender-based violence, but effective steps to address these issues are not routinely included in peace settlements or arrangements. A hundred years ago, the international community would not have considered demanding the inclusion of women in peace processes. In 1945, or even in 1990, the idea of the Security Council passing a resolution on this issue would have been unthinkable, but in 2000 it did adopt resolution 1325 on women, peace and security. Although 1325 has been reiterated many times since, its implementation has been woeful. Where is its practical impact? Where can we see real evidence of its consequences? I would like to say a few words about another subject that has been raised – compromissory clauses. In the 2002 DRC v. Rwanda case there was an attempt to establish the ICJ’s jurisdiction on the basis of any number of different multilateral treaties. The Women’s Convention was one of these. It was unsuccessful because the various steps laid down in Article 29 of the Women’s Convention as preconditions for jurisdiction (negotiation, request for arbitration) had not been gone through. The Court found that, although the DRC had made numerous protests about Rwanda’s actions in violation of human rights law, it had made no direct reference to the Women’s Convention, and thus the requirement of prior negotiations had not been complied with. Judge Al-Khasawneh was concerned by this formalist approach. He focused on what was actually happening in the DRC and considered the relevance of the Women’s Convention to be obvious as “rape and sexual assault of the most horrible forms imaginable [were] committed against thousands and thousands of Congolese women and girls.” He considered that an insistence upon explicit reference to the Convention in diplomatic negotiations would be unrealistic and should not be required to satisfy the requirement of prior

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negotiation as laid down in Article 29. “Surely if the very subject matter is part of what the dispute is, that should be sufficient.” However, Judge Al-Khasawneh also found there to be no jurisdiction under the Women’s Convention as there had been no request for arbitration. On a final, more positive note, going back to the comment made by Sean Murphy, I think that there has been too much compartmentalization.. Because there is now clear international law relating to the possibility of criminal trials for the commission of war crimes and atrocities that were committed during conflict, we still may not see the continued spectrum of violence and lack of civilized behavior towards women and girls. One of the most important legal advances there has occurred within the last twelve months – the Protocol on Sexual Violence that has come out of the Great Lakes peace process. This is an extraordinary document, which looks at the spectrum of behavior, the connections between forms of violence that take place during and after conflicts, and addresses them as a package that needs to be seen together. If that could be (1) made far wider, and not just an international instrument applicable to that particular context; (2) given real effect through effective implementation; and (3) internalized, then we may get somewhere towards civilizing the situation for women and girls.

Remarks by Christian Tomuschat We have been looking back at 100 years of IHL, but if my recollection is correct, the Second World War, WW II, was not mentioned at all. At all! I find that very strange, I must say, since we all know that WW II was a disaster from the viewpoint of IHL. There was a general breakdown of the rules, and Germany, of course, was in the forefront of the violators. Germany began to disregard just about any rule, in particular in the East, where there was massive discrimination. In the West, IHL was respected to some extent, sometimes to a fairly great extent. But in the East, in Poland and the Soviet Union, almost nothing was respected. This was shameful treatment, and it turned out to be particularly detrimental to prisoners of war. It is true that the Soviet Union had not ratified the relevant Convention of 1929 at that time, but the German armed forces should have respected the bare minimum of humanitarian rules – the, Martens clause. But this was not done, and accordingly, prisoners of war died by the hundreds of thousands. They did not receive food or shelter. It was a terrible situation. The civilian population was also badly affected, and we all know that there was a merciless persecution of the Jews. In Poland the duties of the occupying power under Art. 43 of the Hague Rules were not respected – there was quite simply no law for the Poles. This, of

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course, had something to do with the general character of the war in the East, which was waged as a kind of genocidal war, a war of extermination, of annihilation and annexation. The Allied Powers also reacted strongly and brutally to some extent. We are well aware of the air attacks against the civilian population, where civilians did not become victims as objects of collateral damage, but rather as a direct target. There were directly targeted attacks against the civilian population in Dresden and Hamburg, for instance. The last prisoners of war came home from the Soviet Union in 1955 – ten years after the end of WW II. And most interesting, the status of Germany after the war was determined by the Allied Powers when they met at Potsdam. They did not feel bound by the Hague Rules. They took decisions on the territorial shape of Germany. They also practiced interventionist occupation, changing the political structure of Germany, fortunately depriving Germany of the last remnants of the Nazi ideology. They did things, which, with regard to Kosovo, would be regarded as highly controversial today. The horrors of WW II led, first of all, to the conference in Geneva to adopt the four Conventions of 1949, which we are all familiar with. This was the positive outcome, as the war made everyone acutely aware that the protection provided by the 1907 rules and by 1929 Convention was not sufficient. Thus, the protection of prisoners of war, in particular, and of civilians was increased and improved in 1949. The second stage came in 1977 when IHL became sophisticated and more or less complete, as far as traditional warfare is concerned. We know, though, that some aspects of international armed conflict are still not really regulated. There is no specific regime for them, even though the rules that exist are very good. They are almost too perfect. Can one really convey to the armed forces everything that’s on the books? Do the commanders, who are under the obligation to advise and instruct their troops on their duties, really succeed in doing so? And, as Christine Chinkin said just a few minutes ago, few results, if any, can be observed on the ground as far as the protection of women and children is concerned.. So, what really must be improved is the effectiveness of IHL on the ground. This is certainly one of the results of our considerations. Now, I would like to come back to what happened in Potsdam. How could the Potsdam determinations of the Allied Powers, in particular their disposition over German territory, be justified? Eventually this has all become a moot fact of history. But, at that time, no real attempt was made to justify the decisions taken. It was said, “Well, we are the victorious powers! We can do everything we want to do!” But if you want some justification, it could be derived, in my view, from the concept of peace. In a way, the Allied Powers were trustees, with a mission to ensure peace in Europe. They were the nucleus of what the Security Council is

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today, which is, of course, not as free as the Allied Powers were in Potsdam. The Security Council is embedded in a framework of legal rules which limit its functions and powers. By contrast, the Allied Powers in Potsdam were only placed under the general rules of international law, which were fairly weak. Thus, when looking back at 100 years of IHL, we should be careful not to forget the horrors and atrocities committed during WW II, but we should also acknowledge that some good has sprung up from that catastrophe of humankind.

Remarks by Natalino Ronzitti I wish to briefly address five points: the prohibition of the use of force as a norm of peremptory international law, the enhanced protection established by international humanitarian law (IHL), the interconnection between IHL and human rights law, the consolidation of the right to self-determination, and the codification of IHL. If we compare the law on the use of force that existed at the time of the 1907 Hague Codification and its current status, we can see that the international community has made considerable progress. While at the beginning of the 20th century, states enjoyed virtually complete freedom to wage war, the prohibition of the use of force has now become a peremptory norm of international law. This principle allows few exceptions; the problem nowadays is to establish their number and content. Self-defense is an uncontroversial exception to the prohibition of the use of force. It is regulated by Art. 51 of the UN Charter and is enshrined in customary international law. Self-defense may be individual or collective and does not need to be authorized by the Security Council. The controversy is whether self-defense may be resorted to only if an armed attack has occurred, or whether it may also be exerted in the imminence of an armed attack. The latter interpretation is gaining currency even on the Continent, where the majority of authors have preferred to take the former stance. Anticipatory self-defense has nothing to do with the doctrine of preemption or the Bush doctrine on preventive war. The “Bush Doctrine,” which was launched in 2002 and restated in 2006, did not find wide acceptance within the international community, and it has practically remained isolated. Until the terrorist attack against the Twin Towers in 2001, self-defense was conceived of as an action against the state responsible for an armed attack. This notion has now been eroded and the doctrine of self-defense against non-state actors is gaining currency. For instance, it has been endorsed by the Council of the

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Atlantic Alliance and by a respectable number of authors, though it has not yet been completely nor clearly accepted by the International Court of Justice (ICJ). At least three Judges, including the ICJ President, were obliged to point out in their separate opinions that self-defense may be resorted to against non-state actors. The doctrine of humanitarian intervention is still controversial. States may intervene in foreign territory on humanitarian grounds if they are authorized by the Security Council, on the premise that humanitarian emergencies are a threat to peace and security. Unilateral humanitarian intervention has not yet been accepted as legally justifiable by the majority of states. An opinio iuris shared by many states is lacking, and those authors who believe in the existence of a norm of customary international law authorizing a state to intervene in the name of the international community, rely on rational arguments rather than on state practice and opinio iuris. It does not make a difference whether intervention is unilateral or collective, as long as it is not authorized by the Security Council. The notion of “responsibility to protect,” recently endorsed by the 2005 UN World Summit, may support development in this field, but it only establishes that the territorial state commits an international wrongful act if it is mistreating its own people. The UN World Summit very clearly stated that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. It is an established point that the UN Security Council may authorize a state or a group of states to employ armed force. The problem here is the social control on the use of force, since states feel free to employ force once authorized and the Security Council can only exert nominal control. Once more, the World Summit has endorsed the practice of the Security Council to mandate coercive action in order to maintain and restore international peace and security. Recent practice shows that states are willing to resort to force when they perceive that their vital interests are threatened, for instance, the Iraqi invasion or the threat to neutralize nuclear build-up by states through air bombardment. States seem willing to regain, at least partially, the freedom they once enjoyed. However, this desire runs counter to the ius cogens norm prohibiting the use of force. Although some argue that the norm prohibiting the use of force is dead or has fallen into disuse, this position is entirely false. Since the Hague Codification, the law governing hostilities has not only changed its name from law of war to humanitarian law, it has also enhanced its protection for the victims of armed conflicts. Various IHL provisions address the civilian population, and it is of the utmost importance that rules on bombardment under Protocol I, additional to the four Geneva Conventions, regulate land, naval and air warfare in the same manner. Before the adoption of the Protocol, separate

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rules existed for land and naval bombardment, while air bombardment was not subject to any regulation. A further advancement was made in connection with forbidden weapons. The same rules apply both to international and non-international armed conflicts, and this principle has now been endorsed by the Statute of the International Criminal Court. Weapons of Mass Destruction (WMD) have been developed after the Hague Codification. Biological and Chemical weapons have been banned by the 1925 Geneva Protocol. However, the Protocol was not a disarmament convention and prohibited only the first use, leaving open the possibility to use Bacteriological Weapons (BW) and Chemical Weapons (CW) by way of reprisals in kind (or even in reprisals against the violation of other norms of the law of armed conflict). The 1972 BW Convention is a disarmament convention banning the construction of such category of weapons. The 1993 CW Convention is, at the same time, a disarmament and humanitarian law convention, since it forbids not only the construction, but also the use of CW. It also prohibits their use in reprisals. The regime of Nuclear Weapons (NW) is still a source of contention. The 1996 ICJ Advisory Opinion has not completely eliminated any doubt. However, the ICJ has stated an important principle: NW, like all the other weapons, are subject to the principles of IHL. This is of the utmost importance, and NATO countries should withdraw their reservations made upon the signing of Protocol I, stating that the Protocol does not apply to NW. Efforts to prohibit the production of the most dangerous weapons are continuing. Now the attention is on cluster weapons, which have caused numerous casualties during recent conflicts, and efforts are underway for a total ban or a strict regulation of their use. Belligerent reprisals have been a traditional means of enforcing the law on armed conflict. Protocol I has almost prohibited reprisals, even though the provisions containing the prohibition have been the object of several reservations or interpretative declarations. A recent feature of contemporary conflicts has been the employment of private military companies (PMCs). They do not normally fall under the category of mercenaries according to the definition given by Protocol I. However, there is a risk that their employment undermines the principle that the use of armed force is a monopoly of the state, which is the best way to control violence. Hence, there is a danger of resurrecting privateering if the new phenomenon of PMCs is not strictly disciplined. The protection of the individual has also been enhanced by a modern vision on the relationship between human rights and IHL. Two advisory opinions and judgments by the ICJ have clearly indicated that the application of IHL is not incompatible with the application of human rights law. The relationship between the two bodies of law is lex generalis (human rights)/lex specialis (humanitarian law).

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States are obliged to apply both bodies of law and IHL prevails as lex specialis over human rights law if the two bodies are in conflict. It is also interesting to note that human rights institutions have looked into the application of the two branches of law. This is true, for instance, for the Human Rights Council, which has mandated a commission to inquire into the application of both branches of law in recent armed conflicts. Human rights and IHL have also fallen under the universal periodic review carried out by the Human Rights Council. A positive development in connection with the law of occupation is also worthy of note. In comparison with the scant provisions of the Hague Regulations, Geneva Convention IV has dictated a number of provisions to protect the civilian population. Nowadays, the Hague Regulations and Geneva Convention IV are not the only sources of the law of occupation. One must also consider resolutions that the UN Security Council may address to states. For instance, this occurred after the Iraqi occupation by the UK and the United States; the resolutions addressed the issues of the exploitation of oil reserves and use of royalties. The law under the Charter (Art. 103) prevails over the Hague Regulations and the Geneva Convention. IHL, unlike human rights law, does not provide any procedural right for the individual to recover damages suffered due to violations of the law of war. The case law accumulated in recent years does not indicate a real possibility for the individual to receive compensation for violations of law of war. A procedural mechanism is needed along the lines established for violations of human rights law. As has been pointed out, the question has been put to the attention of the International Law Association which is working on it in order to prepare an appropriate resolution. Another very important development can be seen in connection with the right of self-determination of peoples. This right emerged from the decolonization in the 1960s and soon became a principle of international law to be applied universally, as can be seen by the Declaration on Friendly Relations. The norm on selfdetermination imposes erga omnes obligations and is endowed with ius cogens character according to the most learned scholars. Its relevance for the law on the use of force (ius ad bellum) is threefold: – it preserves the right of the people, holder of the right to self-determination, to statehood in a failed state. It cannot be said that the territory of a failed state is terra nullius merely because governmental structure is lacking; – it qualifies the object of the international administration of territories, whose aim should be directed at construing a state or other governmental structure expressing the free will of the people living on the territory under international administration;

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– it renders void conquest as a title to sovereignty over a foreign territory, even in case of debellatio of an aggressor state. The state or states which conducted a victorious war against an aggressor cannot claim to appropriate the territory of the defeated state, since conquest is no longer a valid title to territory. The contemporary codification of IHL is a legacy of the Hague Codification. The Hague Codification, with its 13 Conventions ranging from settlement of disputes to the law of war, was the first codification of international law – an event, which has now become routine for the advancement of international law. While the Hague Conventions are considered customary international law, modern IHL treaties represent, at the same time, the codification and progressive development of IHL. This is particularly true for the two additional Protocols. In this regard, the ICRC Customary International Law Study deserves attention. Even though the findings reached are often controversial, its true value may be perceived when states take a position, for instance, in their military manuals, on the content of rules qualified by the ICRC as customary international law. The task of codifying IHL is not over. As said before, the international community is now facing the danger of cluster weapons and a process is being developed for their prohibition/ regulation. In other fields, the international community is not yet ready for a codification and a kind of soft law codification is always possible. This was done with the San Remo Manual of Law on Naval Warfare, whose value has been proven by the fact that it is often quoted in recent military law manuals. A similar process is being developed in relation to air warfare under the auspices of the Program on Humanitarian Policy and Conflict Research at Harvard University. A deficiency in IHL codification is the absence of compromissory clauses to settle disputes. Are such clauses incompatible with IHL? The 1949 Geneva Conventions and Additional Protocol I contain clauses on conciliation and inquiry. The mechanism of a fact-finding commission under Protocol I, which is object of an optional clause, has never been used. However, jurisdiction is not per se incompatible with the IHL. For instance, the CW Convention, which is at the same time both a convention of disarmament and of humanitarian law, contains a clause in its Art. XIV whereby parties may refer a dispute to the ICJ by mutual consent.

List of Contributors Dr. Ian Anthony, Stockholm International Peace Research Institute Prof. Eyal Benvenisti, Tel Aviv University Prof. Christine Chinkin, London School of Economics Prof. em. Dr. Dr. h.c. Jost Delbrück, University of Kiel Dr. Knut Dörmann, International Committee of the Red Cross Prof. Dr. Oliver Dörr, University of Osnabrück Prof. Gregory H. Fox, Wayne State University Law School, Detroit Prof. Dr. Thomas Giegerich, LL.M. (University of Virginia), Walther-Schücking-Institute for International Law, Kiel Prof. Christine Gray, Cambridge University Dr. Robert Heinsch, Grotius Centre for International Legal Studies, Leiden University; formerly German Red Cross Headquarters, Berlin Priv.-Doz. Dr. Hans-Joachim Heintze, University of Bochum Prof. Dr. Frank Hoffmeister, European Commission Legal Service Prof. Dr. Dr. Rainer Hofmann, University of Frankfurt/Main Dr. Christiane Höhn, Council of the European Union, Brussels Prof. Dr. Walter Kälin, University of Bern Prof. Dr. Heike Krieger, Free University of Berlin Prof. Sean D. Murphy, Patricia Roberts Harris Research Professor of Law, George Washington University

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Dr. Stephen C. Neff, University of Edinburgh Dr. Karin Oellers-Frahm, Max Planck Institute for Comparative Public Law and International Law, Heidelberg Priv.-Doz. Dr. Dagmar Richter, University of Heidelberg/Kiel Prof. Natalino Ronzitti, Luiss University, Rome Dr. Christian Schaller, Stiftung Wissenschaft und Politik (SWP), Berlin Prof. Dr. Kirsten Schmalenbach, University of Graz Prof. Dr. Bruno Simma, Member of the International Court of Justice Prof. Dr. Christian J. Tams, LL.M. Ph.D. (Cambridge), University of Glasgow Prof. em. Dr. Dr. h.c. Christian Tomuschat, Humboldt University, Berlin Dr. Ralph Wilde, University College London