The Authority of the International Committee of the Red Cross: Determining What International Humanitarian Law Is 9004687815, 9789004687813

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The Authority of the International Committee of the Red Cross

International Humanitarian Law Series Editors-​in-​Chief Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-​Saab –​H.E. Judge George H. Aldrich Madame Justice Louise Arbour –​Professor Ove Bring Professor John Dugard –​Professor Dr. Horst Fischer Dr. Hans-​Peter Gasser –​Professor Christopher Greenwood Professor Ruth Lapidoth –​Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron –​Captain J. Ashley Roach Professor Michael Schmitt

volume 68 The International Humanitarian Law Series is a series of monograhs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law, including: –​ Protection for victims of armed conflict and regulation of the means and method of warfare –​ Questions of application of the various legal regimes for the conduct of armed conflict –​ Issues relating to the implementation of International Humanitarian Law obligations –​ National and international approaches to the enforcement of the law and –​ The interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and Intenational Criminal Law.

The titles published in this series are listed at brill.com/​ihul

The Authority of the International Committee of the Red Cross Determining What International Humanitarian Law Is By

Linus Mührel

LEIDEN | BOSTON

Cover illustration: icrc/​Jean Zbinden, Geneva Headquarters of the International Committee of the Red Cross, Switzerland, icrc Audivisual Archives. Library of Congress Cataloging-​in-​Publication Data Names: Mührel, Linus, author. Title: The authority of the International Committee of the Red Cross : determining what international humanitarian law is /​by Linus Jannek Mührel. Description: Leiden ; Boston : Brill/​Nijhoff, 2024. | Series: International humanitarian law series, 1389-​6776 ; volume 68 | Includes bibliographical references and index. Identifiers: LCCN 2023057321 (print) | LCCN 2023057322 (ebook) | ISBN 9789004687813 (hardback) | ISBN 9789004687820 (ebook) Subjects: LCSH: International Committee of the Red Cross. | Humanitarian law. Classification: LCC KZ6471 .M847 2024 (print) | LCC KZ6471 (ebook) | DDC 341.6/​7-​-d​ c23/​eng/​20231214 LC record available at https://​lccn​.loc​.gov​/202​3057​321 LC ebook record available at https://​lccn​.loc​.gov​/202​3057​322

T​ypef​ace for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1389-​6 776 isbn 978-​9 0-​0 4-​6 8781-​3 (hardback) isbn 978-​9 0-​0 4-​6 8782-​0 (e-​book) doi 10.1163/​9 789004687820 Copyright 2024 by Linus Mührel. Published by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Schöningh, Brill Fink, Brill mentis, Brill Wageningen Academic, Vandenhoeck & Ruprecht, Böhlau and V&R unipress. Koninklijke Brill nv reserves the right to protect this publication against unauthorized use. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

To my grandparents Katharina, Marianne, Erich and Manfred

∵

Contents  Acknowledgements xi  Abbreviations xiii  Table of Cases xvii  Table of Treaties xxvi  Table of United Nations Documents xxviii  Introduction 1 1  The icrc’s Determinations on International Humanitarian Law: An Under-​Researched Aspect in the Study of the icrc 1 2  What Can Be Learned from the icrc’s Interpretations and Law-​ Ascertainments about the Current Type of International Law? 6 2.1  Globalisation and the Role of Non-​state Actors 8 2.2  Softening and Hierarchisation of International Law by Dominant States 15 2.3  Points of Departure 18 3  Methodology 20 4  Chapter Outline 24 The Authority of the International Committee of the Red Cross 26 1  1  The Concept of Authority 26 2  Does the icrc Possess a Competence to Interpret and Ascertain International Humanitarian Law? 33 2.1  The icrc’s Role under the Geneva Conventions and Additional Protocols 35 2.2  The icrc’s Role under the Statutes of the Red Cross and Red Crescent Movement 37 3  The icrc’s De Facto Authority 50 4  No Legal Bindingness 53 De Facto Authority of the icrc’s Interpretations 2  and Law-​Ascertainments 54 1  Pictet Commentaries 54 1.1  Broad Acceptance in the Jurisprudence of International Courts and Tribunals 56 1.2  Broad Acceptance in State Practice 78 1.3  The Marks of the Pictet Commentaries’ Authority 83

viii Contents

1.4  Conclusion: Shaping the Content of the Geneva Conventions 91 2  Commentary on the Additional Protocols 92 2.1  Broad Acceptance in the Jurisprudence of International Courts and Tribunals 95 2.2  Broad Acceptance in State Practice 119 2.3  The Marks of Authority of the Commentary on the Additional Protocols 122 2.4  Conclusion: Nearly a Primary Source, but Less Special than the Pictet Commentaries 129 3  Customary International Humanitarian Law Study 130 3.1  Critical but Welcoming Reactions in Academia 134 3.2  Selective Use in the Jurisprudence of International Courts and Tribunals 145 3.3  Rejection and Acceptance in State Practice 153 3.4  The Study’s Marks of Authority 167 3.5  Conclusion: Filling the Loopholes in International Humanitarian Law 178 4  Interpretive Guidance on the Notion of Direct Participation in Hostilities 180 4.1  Broad Criticism in Academia 182 4.2  Little Use in the Jurisprudence of International Courts and Tribunals 193 4.3  Cautious Reactions in State Practice 195 4.4  The Guidance’s Marks of Authority 204 4.5  Conclusion: Helpful but Not Authoritative 211 5  New Commentaries 212 5.1  Mostly Positive Reactions in Academia 214 5.2  Immediate Consideration in the Jurisprudence of International Courts and Tribunals 217 5.3  Rejection of the Interpretation of Common Article 1 in State Practice 219 5.4  The New Commentaries’ Marks of Authority 222 5.5  Conclusion: No Special Status for the New Commentaries Yet 227 6  Assessment: Changes in the Marks and Different Degrees of Authority 228 6.1  Proximity to Legal Sources 229 6.2  Increase and Diversification of the Expert Community 232 6.3  Expansion of International Law 235

Contents

ix

7  Conclusion: The Change of the icrc’s Role for International Humanitarian Law 239 The icrc’s Impact on the Structural Rules of International Law 241 3  1  Identification of Customary International Law 242 1.1  Role in Academic Works 245 1.2  Role in the Work of the International Law Commission on the Identification of Customary International Law 249 1.3  High Impact on the Identification of Customary International Law 262 2  Interpretation of Treaties 262 2.1  Confirmation of the International Law Commission’s Draft Conclusions on Subsequent Practice? 265 2.2  Relevant Rules of International Law Applicable in the Relations between Parties 269 2.3  Preparatory Work 272 2.4  Possible Impact on the Interpretation of Treaties 273 3  Tendencies of Specialisation and Merging of the Sources of International Humanitarian Law 275 3.1  Implications for Specialisation of the Sources of International Humanitarian Law 275 3.2  Implications for Merging of the Sources of International Humanitarian Law 277 4  Conclusion: A New Role for the icrc 279 Legal Classification of the icrc’s Interpretations and Law-​ 4  Ascertainments under the Sources of Law Doctrine and the Means of Interpretation 280 1  No Practice under Article 38 (1) (b) of the Statute of the International Court of Justice 282 2  Subsidiary Means for the Determination of Rules of Law under Article 38 (1) (d) of the Statute of the International Court of Justice 287 2.1  Teachings of the Most Qualified Publicists of the Various Nations 287 2.2  Does Determination of Rules of Law Include Their Interpretation? 289 3  No Means of Interpretation under Article 31 of the Vienna Convention on the Law of Treaties 292

x Contents 4  Supplementary Means of Interpretation under Article 32 of the Vienna Convention on the Law of Treaties? 295 5  The icrc’s Interpretations and Law-​Ascertainments under the Martens Clause as Dictates of Public Conscience? 301 6  What Role for Non-​state Actors? A Political Question 304  Conclusion 309 1  Summary of Main Research Results 309 2  The Future Role of the icrc’s Interpretations and Law-​Ascertainments 311 3  How the icrc’s Interpretations and Law-​Ascertainments Should Be Dealt with in Academia and Legal Practice 317  References 319  Index 357

Acknowledgements This book was originally submitted as a doctoral thesis (s.c.l.) at the Faculty of Law of Freie Universität Berlin. It would not have been possible without the support of a large number of people. My special thanks go to: Heike Krieger, who gave me the opportunity to do my doctorate under her supervision. She gave me the freedom to find my own path, but then also helped me with experience and pragmatism when I got lost. Helmut Aust, who wrote the second examination report. I always found his door open. Bjönstjern Baade, who, even though in no formal supervisory role, accompanied me from the beginning to the end of my doctorate and was always on hand with good advice. Dominik Steiger and Miloš Vez, who have given me a second academic home in Dresden and Vienna. Andrea Bianchi, Nico Krisch and Fuad Zarbiyev, who supervised me during my research stays at the Geneva Graduate Institute and showed me ways to conceptually approach my research. From the icrc Iris Müller and Jean-​Marie Henckaerts, who showed their interest in my research and granted me valuable insights into their work as well as the staff from the icrc library and the icrc archive. Cusanuswerk e.V. supporting me with a scholarship during my doctorate, Deutsche Forschungsgemeinschaft (dfg) funding my first stay in Geneva in 2017, and Ernst-​Reuter-​Gesellschaft financing the proofreading. Bea Timmer, Thalien Colenbrander and an unknown reviewer who accompanied me on the way to my publication with Brill/​Nijhoff and Tim McCormack for including my book in the International Humanitarian Law Series. If not already mentioned, my friends who gave me feedback on individual chapters and supported me in difficult moments.1 To be mentioned here in particular are Ana Luísa Bernardino, Lennart Brandenburg, Helen Burmeister, Dilken Çelebi, Dorothéa Endres, Pedro José Martínez Esponda, Hanna Faig, Prisca Feihle, Hannah Kiel, Konstantin Kleine, Theresia Lehner, Jasper Mührel, Niccolò Ridi, Lena Riemer, Stefan Rolfing, Raphael Schäfer, Tilmann Scherf, Katja Schöberl, Sebastian Seel, Joana Volk. 1 For all those who are considering doing a doctorate, I suggest reading ‘What To Expect When You’re PhDing: Mental Health and Doctoral Studies in International Law’, Völkerrechtsblog, 12 May 2023 accessed 31 August 2023.

xii Acknowledgements Last but not least, my family, my fidanzata Francesca Mirabella and her family, who have always believed in me and made me feel loved, no matter how successful I am. Linus Mührel Berlin, September 2023

Abbreviations Additional Protocols

Protocol i (ap i) and Protocol ii (ap ii) to the 1949 Geneva Conventions American Journal of International Law ajil ap i Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts ap ii Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts ap Commentary Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers, 1987) asil American Society of International Law Bothe/​Partsch/​Solf Commentary Michael Bothe, Karl Josef Partsch and Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1st edn. (Martinus Nijhoff Publishers, 1982) Common Article 1 Article 1 common to the 1949 Geneva Conventions Common Article 2 Article 2 common to the 1949 Geneva Conventions Common Article 3 Article 3 common to the 1949 Geneva Conventions cup Cambridge University Press DoD Manual US Office of the General Counsel, Department of Defense, Department of Defense Law of War Manual (2015, updated December 2016) ECtHR European Court of Human Rights ejil European Journal of International Law gc i Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field gc ii Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea gc iii Geneva Convention relative to the Treatment of Prisoners of War

xiv Abbreviations gc iv

Geneva Convention relative to the Protection of Civilian Persons in Time of War Geneva Conventions Geneva Convention i to iv of 12 August 1949 Guidance Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (icrc 2009) hpcr Manual Program on Humanitarian Policy and Conflict Research at Harvard University (ed.), Commentary on the hpcr Manual on International Law Applicable to Air and Missile Warfare (cup, 2010) IACtHR Inter-​American Court of Human Rights icc International Criminal Court icj International Court of Justice icj Rep International Court of Justice, Reports of Judgments, Orders and Advisory Opinions icj Statute Statute of the International Court of Justice iclq International & Comparative Law Quarterly icrc International Committee of the Red Cross icsid International Centre for Settlement of Investment Disputes ictr International Criminal Tribunal for Rwanda ictr Statute Statute of the International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia icty Statute Statute of the International Criminal Tribunal for the former Yugoslavia ihl International Humanitarian Law ilc International Law Commission International Conference International Conference of the Red Cross and Red Crescent ils International Law Studies irrc International Review of the Red Cross jcsl Journal of Conflict and Security Law jilp New York University Journal of International Law and Politics kfg Kolleg-​Forschungsgruppe ljil Leiden Journal of International Law mpepil Max Planck Encyclopedia of Public International Law MoD Manual UK Ministry of Defence, The Manual of the Law of Armed Conflict (oup, 2004)

Abbreviations Movement New Commentary gc i

xv

International Red Cross and Red Crescent Movement icrc, Commentary on the First Geneva Convention: Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (oup, 2016) New Commentary gc ii icrc, Commentary on the Second Geneva Convention: Convention (ii) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (cup, 2017) New Commentary gc iii icrc, Commentary on the Third Geneva Convention: Convention (iii) relative to the Treatment of Prisoners of War (cup, 2021) oup Oxford University Press pcij Permanent Court of International Justice Pictet Commentaries Jean S. Pictet (ed.), Commentary: I Geneva Convention for the Amelioration of the Condition of the wounded and Sick in Armed Forces in the Field (icrc, 1952); Commentary: ii Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (icrc, 1960); Commentary: iii Geneva Convention relative to the Treatment of Prisoners of War (icrc, 1960); Commentary: iv Geneva Convention relative to the Protection of Civilian Persons in Time of War (icrc, 1958) Rome Statute Rome Statute of the International Criminal Court scsl Special Court for Sierra Leone SIrUS Project Robin M. Coupland, The SIrUS Project: Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suffering” (icrc, 1997) Statutes of the Movement Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 1986 Study Jean-​ Marie Henckaerts and Louise Doswald-​ Beck, Customary International Humanitarian Law –​Volume i: Rules (cup, 2005) Tallinn Manual Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (cup, 2013) UK United Kingdom of Great Britain and Northern Ireland UN United Nations unga UN General Assembly unybilc Yearbook of the International Law Commission

xvi Abbreviations USA United States of America vclt Vienna Convention on the Law of Treaties yihl Yearbook of International Humanitarian Law

Table of Cases

International Case Law

Eritrea-​Ethiopia Claims Commission Eritrea-​Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims, 19 December 2005, Reports of International Arbitral Awards, vol. xxvi European Court of Human Rights ECtHR, Case of Chiragov and Others v Armenia, Appl. No 13216/​05, Judgment (Merits) (16 June 2015) ECtHR, Georgia v. Russia (ii), Appl. No 38263/​ 08, Judgment (Merits) (21 January 2021) ECtHR, Hanan v Germany, Appl. No 4871/​16, Judgment (Merits and Just Satisfaction) (16 February 2021) ECtHR, Case of J. and Others v Austria, Appl. No 58216/​ 12, Judgment (17 January 2017) ECtHR, Case of Janowiec and Others v Russia, Appl. Nos 55508/​07 and 29520/​09, Judgment (21 October 2013) ECtHR, Case of Kononov v Latvia, Appl. No 36376/​04, Judgment (24 July 2008) ECtHR, Case of Korbely v Hungary, Appl. No 9174/​ 02, Judgment (19 September 2008) ECtHR, Case of Marguš v Croatia, Appl. No 4455/​10, Judgment (27 May 2014) ECtHR, Case of Sargsyan v Azerbaijan, Appl. No 40167/​06, Judgment (Merits) (16 June 2015) ECtHR, Case of Saribekyan and Balyan v Azerbaijan, App. No 35746/​11, Judgment (7 September 2020) ECtHR, Case of Tagayeva and Others v Russia, Appl. No 26562/​07, Judgment (13 April 2017) ECtHR, Case of Van Anraat v Netherlands, Appl. No. 65389/​09, Decision on Admissibility (6 July 2010) Inter-​American Commission for Human Rights Inter-​American Commission for Human Rights, Juan Carlos Abella v Argentina, Case No 11.137, Report No 55/​97oea/​Ser.L/​v /​i i.98 doc. 6 rev. (1997)

xviii 

Table of Cases

Inter-​American Court of Human Rights IACtHR, Case of Gelman v Uruguay, Judgment (Merits and Reparations), iachr Series C No 221 (24 February 2011) IACtHR, Case of the Massacres of El Mozote and Nearby Places v El Salvador, Judgment (Merits, Reparations and Costs), Series C No. 253 (25 October 2012) IACtHR, Case of Miguel Castro-​ Castro Prison v Peru, Judgment (Merits, Reparations and Costs), iachr Series C No 160 (25 November 2006) IACtHR, Rochac Heranández et al. v El Salvador, Judgment (Merits, Reparations and Costs), Series C No. 285 (14 October 2014) IACtHR, Case of the Santo Domingo Massacre v Colombia, Judgment (Preliminary Objections, Merits and Reparations), Series C No. 259 (30 November 2012) International Court of Justice icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, icj Rep 2005, p. 168 icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment icj Rep 2002, p.3 icj, Case concerning the Frontier Dispute (Burkina Faso v Republic of Mali), Judgment, icj Rep 1986, p. 554 icj, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, icj Rep 1986, p. 14 icj, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, icj Rep 2012, p. 10 icj, Jurisdictional Immunities of the State (Germany v Italy), Counter-​Claim, Order of 6 July 2010, icj Rep 2010, p. 310 icj, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment, icj Rep 2012, p. 99 icj, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 267 (1970), Advisory Opinion, icj Rep 1971, p. 16 icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Rep 2004, p. 136 icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Rep 1996, p. 226 icj, North Sea Continental Shelf (Federal Republic of Germany v Denmark and Federal Republic of Germany v the Netherlands) Judgment, icj Rep 1969, p. 3 icj, Nuclear Tests (Australia v France), Judgment, icj Rep 1974, p. 267

Table of Cases

xix

icj, Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Judgment, icj Rep 1996, p. 803 icj, Reparation for injuries suffered in the service of the United Nations, Advisory Opinion icj Rep 1949, p. 174 International Criminal Court icc, Prosecutor v Banda (Public redacted ‘decision on the “defence request for termination of proceedings”’) icc-​02/​05-​03/​09-​535-​Red (30 January 2014) icc, Prosecutor v Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges) Case No icc-​01/​05-​01/​08 (15 June 2009) icc, Prosecutor v Bemba Gombo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​05-​01/​08-​3343 (21 March 2016) icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) icc, Prosecutor v Lubanga Dyilo (Confirmation of charges) Case No icc-​01/​04-​ 01/​06-​803 (29 January 2007) icc, Prosecutor v Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​04-​01/​06 (14 March 2012) icc, Prosecutor v Lubanga Dyilo (Decision on sentence pursuant to Article 76 of the Statute) Case No icc-​01/​04-​01/​06-​2901 (10 July 2012) icc, Prosecutor v Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) Case No icc-​01/​04–​01/​06 A 5 (1 December 2014) icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​01/​04-​01/​10-​465-​Red (16 December 2011) icc, Prosecutor v Ntaganda (Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) Case No icc-​01/​04-​ 02/​06-​1707 (4 January 2017) icc, Prosecutor v Ntaganda (Judgment) Case No icc-​01/​04-​02/​06 oa5 (15 June 2017) icc, Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation) Case No icc-​01/​13-​34 (16 July 2015) icc, Situation in the Islamic Republic of Afghanistan (Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan) Case No icc-​02/​17-​138 (5 March 2020)

xx 

Table of Cases

icc, Situation in the State of Palestine (The State of Palestine’s observations in relation to the request for a ruling on the Court’s territorial jurisdiction in Palestine) Case No icc-​01/​18-​82 (16 March 2020) icc, Situation in the State of Palestine (The State of Palestine’s response to the Pre-​Trial Chamber’s Order requesting additional information) Case No icc-​ 01/​18-​135 (4 June 2020) International Criminal Tribunal for Rwanda ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​A (1 June 2001) ictr, Prosecutor v Bagosora and Nsengiyumva (Judgment) Case No ictr-​98-​ 41-​A (14 December 2011) ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​1-​T (21 May 1999) ictr, Prosecutor v Musema (Judgment) Case No ictr-​96-​13-​A (27 January 2000) ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 Decem­ ber 1999) ictr, Prosecutor v Setako (Judgment) Case No ictr-​04-​81-​A (28 September 2011) ictr, Prosecutor v Semanza (Judgment) Case No ictr-​97-​20-​T (15 May 2003) International Criminal Tribunal for the former Yugoslavia icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​T (10 July 2008) icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) icty, Prosecutor v Delić (Judgment) Case No it-​04-​83-​T (15 September 2008) icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) icty, Prosecutor v Haradinaj et al. (Judgment) Case No it-​04-​84-​T (3 April 2008)

Table of Cases

xxi

icty, Prosecutor v Haradinaj et al. (Judgment) Case No it-​04-​84bis-​T (29 November 2012) icty, Prosecutor v Hadžihasanović et al. (Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility) Case No it-​ 01-​47-​a r72 (16 July 2003) icty, Prosecutor v Hadžihasanović and Kubura (Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal) Case No it-​01-​47-​a r73.3 (11 March 2005) icty, Prosecutor v Hadzihasanović and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​T (15 March 2002) icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​A (17 December 2003) icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23 & it-​96-​23/​1-​A (12 June 2002) icty, Prosecutor v Kvočka et al. (Judgment) Case No it-​98-​30/​1-​T (2 November 2001) icty, Prosecutor v Kvočka et al. (Judgment) Case No it-​98-​30/​1-​A (28 February 2005) icty, Prosecutor v Limaj et al. (Judgment) No. it-​03-​66-​T (30 November 2005) icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​A (8 October 2008) icty, Prosecutor v Milošević (Decision on monitoring for Judgment of acquittal) Case No it-​02-​54-​T (16 June 2004) icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​A (12 November 2009) icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) icty, Prosecutor v Mrkšić et al. (Judgment) Case No it-​95-​13/​1-​T (27 September 2007) icty, Prosecutor v Mrkšić and Šljivančanin (Judgment) Case No it-​95-​13/​1-​A (5 May 2009) icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003)

xxii 

Table of Cases

icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​T (30 June 2006) icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​A (3 July 2008) icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) icty, Prosecutor v Popović et al. (Judgment) Case No it-​05-​88-​T (10 June 2010) icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​A (29 November 2017) icty, Prosecutor v Rajić (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence) Case No it-​95-​12 (13 September 1996) icty, Prosecutor v Simić et al. (Decision on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness) Case No it-​95-​9-​p t (27 July 1999) icty, Prosecutor v Simić et al. (Judgment) Case No it-​95-​9-​T (17 October 2003) icty, Prosecutor v Šljivančanin (Review Judgment) Case No it-​95-​13/​l-​R.1 (8 December 2010) icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​T (31 July 2003) icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) icty, Prosecutor v Stanišić and Župljanin (Judgment) Case No it-​08–​91-​T (27 March 2013) icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​A (17 July 2008) icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​A (2 October 1995) icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​T (7 May 1997) icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​A (15 July 1999) icty, Prosecutor v Tolimir (Judgment) Case No it-​05-​88/​2-​T (12 December 2012) icty, Prosecutor v Vasiljević (Judgment) Case No it-​98-​32-​T (29 November 2002) Permanent Court of International Justice pcij, The Case of the s.s. “Lotus” (France v Turkey) [1927] pcij Series A No 10 Special Court for Sierra Leone scsl, Prosecutor v Brima et al. (Judgment) Case No scsl-​04-​16-​T (20 June 2007) scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​A (28 May 2008) scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​A (26 October 2009) scsl, Prosecutor v Taylor (Judgment) Case No scsl-​03-​01-​T (18 May 2012)

Table of Cases



xxiii

National Case Law

Bosnia and Herzegovina Court of Bosnia and Herzegovina, Panel, Section i for War Crimes, Case No x-​ kr-​06/​290, Judgment of 28 November 2007 Court of Bosnia and Herzegovina, Panel of the Appellate Division, Section i for War Crimes, Case No x-​k r-​08/​489, Judgment of 12 November 2010 Canada Daniel Turp v Minister of Foreign Affairs (Judgment) Case No T-​462-​16, 2017 fc 84 (24 January 2017) Colombia Colombian Constitutional Court, Sentencia, Case No C-​291/​07 (25 April 2007) Special Jurisdiction for Peace, Case No. 01, Hostage-​taking and serious deprivation of liberty committed by the farc-​e p (26 January 2021) Germany Bundesgerichtshof, Judgment of 27 July 2017 –​3 StR 57/​17 Bundesverfassungsgericht, Beschluss vom 13. August 2013 –​2 BvR 2660/​06 Bundesverfassungsgericht, Beschluss vom 13. Juli 2018 –​1 BvR 1474/​12 Der Generalbundesanwalt beim Bundesgerichtshof, Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel W. wegen des Verdachts einer Strafbarkeit nach dem VStGB und anderer Delikte –​Einstellung des Verfahrens gemäß § 170 Abs. 2 Satz 1 StPO, 3 bj s 6/​10-​4 (16 April 2010) Der Generalbundesanwalt beim Bundesgerichtshof, Drohneneinsatz vom 4. Oktober 2010 in Mir Ali/​Pakistan –​Verfügung des Generalbundesanwalts vom 20. Juni 2013, Case No 3 bj s 7/​12-​4 (23 July 2013) Hungary Legfelsőbb Bíróság [Hungarian Supreme Court] No x. 713/​1999/​3, 28 June 1999 Israel Supreme Court sitting as Court of Criminal Appeals, A. and B. v. State of Israel, Judgment of 11 June 2008, CrimA 6659/​06 Supreme Court sitting as the High Court of Justice, Adalah –​The Legal Center for Arab Minority Rights in Israel et al. v. goc Central Command, idf et al., Judgment of 23 June 2005, hcj 3799/​02

xxiv 

Table of Cases

Supreme Court sitting as the High Court of Justice, Jaber Al-​Bassiouni Ahmed and Others v Prime Minister and Minister of Defence, Judgment of 30 January 2008, hcj 9132/​07 Supreme Court sitting as the High Court of Justice, Public Committee against Torture in Israel et al. v. Government of Israel et al., Judgment of 14 December 2006, hcj 769/​02 Supreme Court sitting as the Hight Court of Justice, Shlomo Valero et al. v. State of Israel et al., Judgment of 6 February 2011, hcj 3103/​06 Supreme Court sitting as the High Court of Justice, Yesh Din et al v the idf Chief of Staff et al., Judgment of 30 April 2018, hcj 3003/​18 and hcj 3250/​18 Netherlands Court of Appeal of the Hague, 7 July 2011, ecli:nl:ghsgr:2011:bro686, Prosecutor v Joseph M. District Court of the Hague, 23 March 2009, ecli:nl:rbsgr:2009:bi2444, Prosecutor v Joseph M. Philippines Representatives Lagman v Medialdea [2017] phsc 351 South Africa North Gauteng High Court, Pretorius et al. v The State and Others, 2010 jdr 1275, Judgment of 26 August 2010 Sweden Stockholm District Court, Public Prosecutor (on behalf of Behram (Hussein) and ors) v Arklöf ( Jackie) (Judgment) Case No B 4084-​04, ildc 633 (se 2006) (18 December 2006) Stockholm District Court, Prosecutor v Haisam Omar Sakhan (Judgment) Case No B 2259-​17 (31 Mai 2017) United Kingdom of Great Britain and Northern Ireland Al-​Sirri v Secretary of State for the Home Department and dd v Secretary of State for the Home Department [2012] ewca Civ 1407 Haidar Ali Hussein v Secretary of State for Defence [2013] ewhc 95 Haidar Ali Hussein v Secretary of State for Defence [2014] ewca Civ 1087 Serdar Mohammed v Ministry of Defence [2014] ewhc 1369 (qb) Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843

Table of Cases

xxv

United States of America Court of Military Commission Review, United States of America v Ali Hamza Ahmad Suliman Al Bahlul, 820 F.Supp.2d 1141, No. cmcr 09-​001, Judgment of 9 September 2011 Court of Appeals, Al-​Bihani v Obama, 590 F 3d 866 (dc Cir 2010) Court of Appeals, NY Times Co v US Department of Justice, 756 F 3d 100 (2d Cir 2014) Court of Appeals, United States of America v Irek Ilgiz Hamidullin, 888 F.3d 62 (4th Cir. 2018) District Court (Southern District of Florida), United States v Noriega, 746 F. Supp. 1506 (1990) District Court (Southern District of Florida), United States v Noriega, 808 F. Supp. 791 (1992) District Court (Eastern District of New York), Oran Almog v Arab Bank, 471 F. Supp.2d 257 (2007) District Court (Columbia), Falen Gherebi v Barack H. Obama, 609 F.Supp.2d 43 (2009) Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 548 U.S. 557 (2006)

Table of Treaties

International Treaties

Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) 3013 unts Articles of Agreement of the International Monetary Fund (adopted 22 July 1944, entered into force 27 December 1945) 2 unts 39 Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 unts 39 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 1056 unts 211 Covenant of the League of Nations (signed 28 April 1919, entered into force 10 January 1920, expired 20 April 1946) General Agreement on Tariffs and Trade 1994, Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) Annex ia, 1867 unts 187 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted on 22 August 1864, entered into force on 22 June 1865) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 6 July 1906, entered into force 9 August 1907) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 27 July 1929, entered into force 19 June 1931) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 21 August 1949, entered into force 21 October 1950) 75 unts 31 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 21 August 1949, entered into force 21 October 1950) 75 unts 85 Geneva Convention relative to the Treatment of Prisoners of War (adopted 21 August 1949, entered into force 21 October 1950) 75 unts 135 Geneva Convention relative to the Protection of Civilian Persons (adopted 21 August 1949, entered into force 21 October 1950) 75 unts 287 Hague Convention with Respect to the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900)

Table of Treaties

xxvii

Hague Convention Relative to the Opening of Hostilities (adopted 18 October 1907, entered into force 26 January 1910) Hague Convention Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) North American Free Trade Agreement (signed 17 December 1992, entered into force 1 January 1994) Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2201 unts 311 Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 unts 3 Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 unts 609 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (adopted 8 December 2005, entered into force 14 January 2007) 2404 unts 261 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 unts 90 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 unts 172 Statute of the International Court of Justice (adopted 24 October 1945, entered into force 18 November 1946) annexed to the Charter of the United Nations, 1 unts 3 Statute of the Permanent Court of International Justice (adopted 13 December 1920, entered into force 8 October 1921) 6 lnts 379 Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331

Table of United Nations Documents

International Law Commission

ilc, Third report on the Law of treaties, by Sir Humphrey Waldock, Special Rapporteur, UN Doc a.cn.4/​167, a.cn.4/​167/​Add.1–​3, (1964) 16 unybilc Vol. ii ilc, Draft Articles on the Law of Treaties with commentaries, (1966) unybilc Vol. ii ilc, First report on responsibility of international organizations by Giorgio Gaja, Special Rapporteur, UN Doc a/​c n.4/​532 (26 March 2003) ilc, Conclusions of the work of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, reproduced in Report of the ilc on the work of its fifty-​eighth session, UN Doc a/​61/​10 (2006) Chapter xii ilc, Summary record of the 3148th meeting, UN Doc a/​c n.4/​3148 (24 July 2012), (2012) unybilc Vol. i ilc, Summary record of the 3150th meeting, UN Doc a/​c n.4/​3150 (26 July 2012), (2012) unybilc Vol. i ilc, Summary record of the 3151st meeting, UN Doc a/​c n.4/​3151 (27 July 2012), (2012) unybilc Vol. i ilc, First report on subsequent agreements and subsequent practice in relation to treaty interpretation by Georg Nolte, Special Rapporteur, UN Doc a/​ cn.4/​660 (19 March 2013) ilc, Summary record of the 3162nd meeting, UN Doc a/​c n.4/​3162 (10 May 2013), (2013) unybilc Vol. i ilc, First report on formation and evidence of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​663 (17 May 2013) ilc, Summary record of the 3184th meeting, UN Doc a/​c n.4/​3184 (23 July 2013), (2013) unybilc Vol. i ilc, Second report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​672 (22 May 2014) ilc, Identification of customary international law: Statement of the Chairman of the Drafting Committee, Mr. Gilberto Saboia (7 August 2014) accessed 31 August 2023 ilc, Provisional summary record of the 3207th meeting, UN Doc a/​c n.4/​3207 (18 August 2014)

Table of United Nations Documents

xxix

ilc, Provisional summary record of the 3226th meeting, UN Doc a/​c n.4/​ sr.3226 (19 September 2014) ilc, Provisional summary record of the 3227th meeting, UN Doc a/​c n.4/​ sr.3227 (29 October 2014) ilc, Third report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​682 (27 March 2015) ilc, Provisional summary record of the 3251st meeting, UN Doc a/​c n.4/​ sr.3251 (9 June 2015) ilc, Provisional summary record of the 3253rd meeting, UN Doc a/​c n.4/​ sr.3253 (15 July 2015) ilc, Identification of customary international law: Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau (29 July 2015) accessed 31 August 2023 ilc, Provisional summary record of the 3280th meeting, UN Doc a/​c n.4/​ sr.3280 (22 September 2015) ilc, Provisional summary record of the 3254th meeting, UN Doc a/​c n.4/​ sr.3254 (10 May 2016) ilc, Fourth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by Georg Nolte, Special Rapporteur, UN Doc a/​c n.4/​694 (7 March 2016) ilc, Fourth report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​695 (8 March 2016) ilc, Provisional summary record of the 3252nd meeting, UN Doc a/​c n.4/​ sr.3252 (12 April 2016) ilc, Fourth report on identification of customary international law by Michael Wood, Special Rapporteur, Addendum UN Doc a/​c n.4/​695/​Add.1 (25 May 2016) ilc, Provisional summary record of the 3306th meeting, UN Doc a/​c n.4/​ sr.3306 (20 March 2017) ilc, Identification of customary international law: Comments and observations received from Governments, UN Doc a/​c n.4/​716 (14 February 2018) ilc, Fifth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by Georg Nolte, Special Rapporteur, UN Doc a/​c n.4/​715 (28 February 2018) ilc, Provisional summary record of the 3443rd meeting, UN Doc a/​c n.4/​ sr.3443 (24 September 2018)

xxx 

Table of United Nations Documents

ilc, Identification of customary international law: Ways and means for making the evidence of customary international law more readily available, Memorandum by the Secretariat, UN Doc a/​c n.4/​710/​Rev.1 (14 February 2019) ilc, Protection of the Environment in Relation to Armed Conflicts, Comments and Observations Received from Governments, International Organizations and Others, UN Doc a/​c n.4/​749 (17 January 2022) ilc, Subsidiary means for the determination of rules of international law: Titles and texts of draft conclusions 1 to 3 provisionally adopted by the Drafting Committee, UN Doc a/​c n.4/​l .985 (2 June 2023)

United Nations General Assembly

unga, Sixth Committee, Summary record of the 8th meeting, UN Doc a/​c .6/​ 61/​s r.8 (15 November 2006) unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​ 61/​30 (18 December 2006). unga, Sixth Committee, Summary Record of the 13th Meeting, UN Doc a/​c .6/​ 63/​s r.13 (7 November 2008) unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​ 63/​125 (15 January 2009) unga, Report of the International Law Commission –​Sixty-​third session (26 April –​3 June and 4 July –​12 August 2011) UN Doc a/​r es/​66/​10 (12 August 2011) unga, Report of the International Law Commission on the work of its sixty-​ third session, UN Doc A/​r es/​66/​98 (13 January 2012) unga, Resolution adopted by the General Assembly on 9 December 2011: Responsibility of international organizations, UN Doc a/​r es/​66/​100 (27 February 2012) unga, Report of the International Law Commission, Sixty-​fourth session (7 May-​1 June and 2 July-​3 August 2012), UN Doc a/​c n.4/​653 (30 May 2012) unga, Resolution adopted by the General Assembly on 14 December 2012, UN Doc a/​R es/​67/​92 (14 January 2013) unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​ 67/​93 (14 January 2013)

Table of United Nations Documents

xxxi

unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​ 69/​120 (18 December 2014) unga, Sixth Comittee, Summary record of the 24th meeting, UN Doc a/​c .6/​71/​ sr.24 (29 November 2016) unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​ 71/​144 (20 December 2016). unga, Report of the International Law Commission, Sixty-​eighth session (2 May-​10 June and 4 July-​12 August 2016) UN Doc a/​71/​10 (12 August 2016) unga, Report of the International Law Commission, Seventieth session (30 April-​1 June and 2 July-​10 August 2018), UN Doc a/​73/​10 (10 August 2018)

United Nations Human Rights Committee

UN Human Rights Committee, Draft general comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc ccpr/​c /​g c/​33/​c rp.3 (25 August 2008) UN Human Rights Committee, General Comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc ccpr/​c /​g c/​33 (5 November 2008)

United Nations Human Rights Council

UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-​ General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc a/​h rc/​2/​7 (2 October 2006) UN Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the UN Fact-​Finding Mission on the Gaza Conflict, UN Doc a/​h rc/​12/​48 (25 September 2009) UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston: Study on Targeted Killings, UN Doc a/​h rc/​14/​24/​Add.6 (28 May 2010)

newgenprepdf

xxxii 

Table of United Nations Documents

UN Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc a/​h rc/​17/​44 (12 January 2012) UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. a/​h rc/​37/​72 (1 February 2018) UN Human Rights Council, Report of the detailed findings of the indepen­ dent international Commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc a/​h rc/​40/​c rp.2 (18. March 2019) UN Human Rights Council, ‘There is nothing left for us’: starvation as a method of warfare in South Sudan, Conference room paper of the Commission on Human Rights in South Sudan, UN Doc. a/​h rc/​45/​c rp.3 (5 October 2020) UN Human Rights Council, Ensuring accountability and justice for all violations of international law in the Occupied Palestinian Territory, including East Jerusalem Report of the United Nations High Commissioner for Human Rights, UN Doc a/​h rc/​46/​22 (15 February 2021)

United Nations Secretary General

UN Secretary-​General, Report of the Secretary-​General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011 accessed 31 August 2023

United Nations Security Council

Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) (adopted 8 November 1994 by Security Council Resolution 955/​1994) Statute of the International Criminal Tribunal for the former Yugoslavia (as amended on 17 May 2002) (adopted 25 October 1993 by Security Council Resolution 827/​1993)

Introduction 1

The icrc’s Determinations on International Humanitarian Law: An Under-​Researched Aspect in the Study of the icrc

The development of international humanitarian law (ihl) is closely linked to the work of the International Committee of the Red Cross (icrc), a humanitarian non-​governmental organisation that seeks to ensure the protection and assistance of victims of armed conflicts.1 In this context, the role of the icrc in the development of treaty-​based ihl is particularly well known. The icrc was found in 1863 and in the following year it prepared the draft for the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The Convention was adopted at a diplomatic conference held in Geneva as the first treaty of modern ihl.2 In the following decades, the icrc played a similar role at the 1906, 1929, 1948–​49, and 1974–​77 diplomatic conferences, where the 1864 Convention was revised, and new conventions on the protection of war victims and additional protocols were thereto adopted.3 The basis of today’s treaty-​based ihl can be traced to the influence of the icrc and possibly would not exist without it. The impact of the icrc on ihl, through the preparation of treaties and the participation at diplomatic conferences, has been comprehensively analysed in academia.4 Yet, the icrc’s impact extends beyond preparing treaties and 1 F. Bugnion, ‘The International Committee of the Red Cross and the Development of International Humanitarian Law’ (2004) 5(1) Chicago Journal of International Law, 191–​215 at 208. 2 Ibid., 193. For an introduction of the development of modern ihl, see A. Alexander, ‘A Short History of International Humanitarian Law’ (2015) 26(1) ejil 109–​38 at 111–​2. See also G. Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (Cornell University Press, 2020). 3 See e.g. Bugnion, ‘The International Committee of the Red Cross’, 193; R. Heinsch, ‘The International Committee of the Red Cross and the Geneva Conventions of 1949’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017); M. Bothe, ‘The International Committee of the Red Cross and the Additional Protocols of 1977’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017). 4 See e.g. D. P. Forsythe, The Humanitarians: The International Committee of the Red Cross (cup, 2005), pp. 259–​70; Heinisch, ‘The International Committee of the Red Cross and the Geneva Conventions of 1949’; Bothe, ‘The International Committee of the Red Cross and the Additional Protocols of 1977’. In addition, the icrc was involved in the development of treaties in fields of international law related to ihl. For a general overview of the involvement of the icrc in the development of several international treaties see e.g. D. P. Forsythe and B. A. J. Rieffer-​Flanagan, The International Committee of the Red Cross: A Neutral

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_002

2 Introduction participating at diplomatic conferences –​it has also published thorough interpretations of some of these treaties. A first commentary was published in 1870 on the very first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, adopted in 1864, and its 1868 additional Articles by then icrc president Gustave Moynier.5 This was followed by commentaries on the 1906 and 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field,6 commentaries on the four 1949 Geneva Conventions,7 also known as the Pictet Commentaries, and a commentary on the two 1977 Additional Protocols8 (ap Commentary). Since the 1990s, and especially since the 2000s, the icrc intensified its treaty interpretation activities and, additionally, started to ascertain and interpret customary ihl. The most striking examples are the Customary International

5 6

7

8

Humanitarian Actor, 2nd edn. (Routledge, 2016), pp. 38–​53 and Bugnion, ‘The International Committee of the Red Cross’, 193. For involvement in the development of international criminal treaty law see e.g. C. Stahn, ‘Between “Constructive Engagement”, “Collusion” and “Critical Distance”: The International Committee of the Red Cross and the Development of International Criminal Law’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017) and L. Maresca and J. Lavoyer, ‘The Role of the icrc in the Development of International Humanitarian Law’ (1999) 4(3) International Negotiation, 501–​25. For involvement in the development of treaties on the limitation and prohibition on the use of certain weapons, see K. Lawand and I. Robinson, ‘Development of Treaties Limiting or Prohibiting the Use of Certain Weapons: The Role of the International Committee of the Red Cross’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017); L. Maresca and S. Maslen, The Banning of Anti-​Personnel Landmines: The Legal Contribution of the International Committee of the Red Cross 1955–​1999 (cup, 2000). G. Moynier, Etude sur la Convention de Genève pour l’amélioration du sort des militaires blessés dans les armées en campagne: 1864 et 1868 (Librairie de J. Cherbuliez, 1870 and Kessinger Publishing, 2010). E. Röthlisberger, Die neue Genfer Konvention vom 6. Juli 1906 (A. Francke, 1908); P. Des Gouttes, ‘Commentaire de la Convention de Genève du 27 juillet 1929’ (icrc, 1930). For a discussion of these first icrc Commentaries, see C. Mohr and E. Policinski, ‘From the Gilded Age to the Digital Age: The evolution of icrc legal commentaries’ (2022) 104(920–​921) irrc, 1898–​1917 at 1900–​4. J. S. Pictet (ed.), Commentary: I Geneva Convention for the Amelioration of the Condition of the wounded and Sick in Armed Forces in the Field (icrc, 1952); J. S. Pictet (ed.), Commentary: iv Geneva Convention relative to the Protection of Civilian Persons in Time of War (icrc, 1958); J. S. Pictet (ed.), Commentary: iii Geneva Convention relative to the Treatment of Prisoners of War (icrc, 1960); J. S. Pictet (ed.), Commentary: ii Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (icrc, 1960). Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers, 1987).

Introduction

3

Humanitarian Law Study9 (Study) published in 2005, the Interpretive Guidance on the Notion of Direct Participation in Hostilities10 (Guidance) published in 2009 and the current updating process of the first commentaries on the Geneva Conventions and Additional Protocols.11 In general, it can be observed that these icrc publications play an important role in the determination of the rules of ihl.12 They are frequently granted special status and are perceived as official13 and authoritative.14 The icrc’s interpretations and law-​ascertainments were subject to academic analysis with regard to their ‘correctness’, particularly whether they comply with methodological standards and reflect de lege lata.15 However, a comprehensive study of their role for ihl has not yet been undertaken,16 although there seems to be much uncertainty especially regarding their legal 9 10 11

12 13 14

15 16

J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law: Volume i: Rules (cup, 2005); J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law: Volume ii: Practice (cup, 2005). N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (icrc, 2009). For an overview of the updating process, see J.-​M. Henckaerts, ‘Bringing the Commentaries on the Geneva Conventions and their Additional Protocols into the twenty-​first century’ (2012) 94(888) irrc, 1551–​5. The process started in 2011 and was planned to be completed in 2019. Three new Commentaries have already been published, see icrc (ed.), Commentary on the First Geneva Convention: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (cup, 2016); icrc (ed.), Commentary on the Second Geneva Convention: Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (cup, 2017); icrc (ed.), Commentary on the Third Geneva Convention: Convention relative to the Treatment of Prisoners of War (cup, 2021). For a detailed study of the acceptance of the icrc’s publications in academia and legal practice, see Chapter 2. E.g. with regard to the Pictet Commentaries, see US Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 548 U.S. 557 (2006) p. 56 (fn. 48). E.g. with regard to the ap Commentary, see R. Cryer, ‘The International Committee of the Red Cross’ “Interpretive Guidance on the Notion of Direct Participation in Hostilities”: See a Little Light’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017), p. 114. For an analysis of the academic discussions on the Study, the Guidance and the new Commentaries, see Chapter 2, at 3.1, 4.1 and 5.1. A few contributions tentatively analyse the significance of individual icrc publications for ihl, see e.g. J. Grignon, ‘Les Commentaires des Conventions de Genève Rédigés sous la Direction de Jean Pictet’, in J. Grignon, C. Lanord and J. Massé (eds.), Hommage à Jean Pictet (Éditions Yvon Blais and Schulthess, 2016) and M. Milanovic and S. Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study: How does ihl develop?’ (2022) 104(920–​921) irrc 1856–​97.

4 Introduction relevance. For example, this uncertainty finds expression in divergent, but generally unsubstantiated positions for and against their classification under Article 38 (1) (d) icj Statute17 and Article 32 vclt.18 In contrast, the participation of the icrc in the preparation of treaties is generally considered to be of no legal effect. It is only through the consent of states on the treaties that the icrc’s input becomes law.19 This uncertainty about the legal relevance of the icrc’s interpretations and law-​ascertainments is related to the ambiguity about the icrc’s role under international law. In the absence of an institution for ihl established by states and due to its long history in the development of ihl, the icrc is commonly perceived as a special actor in international law. It has been described as a quasi-​international organisation,20 guardian and promoter of ihl,21 and subject of international law sui generis.22 Yet, there is a lack of clarity about what makes this actor special. The various descriptions of the icrc exacerbate the ambiguity about the icrc’s role under international law. This ambiguity is furthered by the unclear role of the icrc under the Geneva Conventions and the Additional Protocols, in which the icrc is mentioned in certain provisions. Moreover, the icrc’s role under the Statutes of the Red Cross and Red Crescent Movement (Statutes of the Movement) is, inter alia, to prepare any development of ihl and ‘to carry out mandates entrusted to it by the International Conference’.23 These provisions from the Geneva Conventions, Additional Protocols and Statutes of the Movement are often drawn upon to highlight the 17

18

19 20 21 22 23

See e.g. in favour of a classification under Article 38 (1) (d) icj Statute, Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 para. 171; against this C. Stahn, ‘Between Constructive Engagement, Collusion and Critical Distance: The icrc and the Development of International Criminal Law’ (2016) 15(1) Chinese Journal of International Law 139–​66 at 161. See e.g. in favour of a classification under Article 32 Vienna Convention on the Law of Treaties I. Henderson, ‘Letter to the Editor: Status of the icrc Commentaries’, Just Security, 20 November 2013; against this R. Geiss and A. Zimmermann, ‘The International Committee of the Red Cross: A Unique Actor in the Field of International Humanitarian Law Creation and Progressive Development’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017), pp. 241–​2. However, see the discussion in Chapter 3, at 2.3, on the extent to which the icrc’s draft conventions can be used as preparatory works within the meaning of Article 32 vclt. See e.g. Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 245–​6. D. Thürer, International Humanitarian Law: Theory, Practice, Context (brill, 2011), pp. 55–​6. See e.g. M. Herdegen, Völkerrecht, 15th edn. (c.h. Beck, 2016), p. 74. Article 5 Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 1986.

Introduction

5

special role of the icrc under international law. It is argued that the icrc has a competence to interpret and ascertain rules of ihl.24 In its publications, the icrc itself denies having influence on the normative development of ihl, being aware that a claim to a competence to interpret and ascertain rules of ihl could lead to the reluctance of states to accept the icrc’s publications.25 In this respect, it was already pointed out in the Pictet Commentaries in 1952 that the icrc always takes care to emphasize that only the participant States are qualified, through consultation between themselves, to give an official and, as it were, authentic interpretation of an intergovernmental treaty.26 More than fifty years later, nothing has changed in this respect when Jakob Kellenberger, former president of the icrc, explains that the icrc guidance aimed at clarifying existing ihl rules, despite the obvious operational relevance of such efforts, should not to be confused with normative development, which is the prerogative of states. Interpretations by the icrc, even if preceded by consultations with external experts (governmental or non-​governmental) are not strictly binding on states.27 Yet, at the same time, the icrc promotes a certain ambivalence with regard to its role under international law and the legal relevance of its outputs, especially when it refers to its role under the Geneva Conventions, the Additional Protocols, and the Statutes of the Movement in order to emphasise the value of its interpretations and ascertainments of ihl.28 Thus, at times, the icrc 24 25

26 27 28

See the discussion in Chapter 1, at 2. For the same reasons, other non-​state actors also downplay their influence, see e.g. the self-​representation of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Rep 1996, p. 226, para. 18. Cf. also N. Jansen, The making of legal authority: Non-​legislative codifications in Historical and comparative perspective (oup, 2010), pp. 88–​9 (with regard to non-​state actors in the national law context); B. Baade, Der Europäische Gerichtshof für Menschenrechte als Diskurswächter: Zur Methodik, Legitimität und Rolle des Gerichtshofs im demokratisch-​ rechtsstaatlichen Entscheidungsprozess (Springer, 2017), p. 58 (with regard to the European Court of Human Rights). Pictet, Commentary gc i, p. 7. J. Kellenberger, ‘The Role of the International Committee of the Red Cross’, in A. Clapham and P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (oup, 2014), p. 27. See e.g. icrc, Commentary on the First Geneva Convention, para. 8.

6 Introduction seems to exploit the ambivalence about its role in international law to provide its outputs with special weight for questions on ihl addressed in legal practice and academia. This book seeks to contribute to a better understanding of the icrc’s role under international law. To this end, it comprehensively examines the role of the icrc’s interpretations and law-​ascertainments for ihl. In particular, the book reveals the impact that the icrc’s interpretations and law-​ascertainments have on ihl as well as the reasons for this impact. Their examination provides insight into the direction that ihl –​and international law in general –​develops. This insight relates to the type of international law. 2

What Can Be Learned from the icrc’s Interpretations and Law-​ Ascertainments about the Current Type of International Law?

For a long time, international law has been predominantly conceived as law primarily set by states to serve for their coexistence and cooperation with each other.29 Next to religious and ideological neutrality,30 voluntarism and positivism are considered to be essential for this ‘classical’ type of international law.31 Voluntarism presupposes that individual consent of states –​as subjects of the law –​is needed to make legal norms binding.32 Only states can determine the substance and limits of their own obligations.33 Accordingly, non-​state 29 30 31 32

33

P.-​M. Dupuy, ‘Prosper Weil’s Article: A Stimulating Warning’ (2020) 114 ajil Unbound 72–​6 at 76; S. Yee, ‘The International Law of Co-​Progressiveness as a Response to the Problems Associated with “Relative Normativity”’ (2020) 114 ajil Unbound 97–​102 at 99. For criticism on the assumption of international law’s neutrality, see e.g. the various contributions in A. Anghie and others (eds.), The Third World and International Order: Law, Politics, and Globalization (Martinus Nijhoff Publishers, 2003). P. Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77(3) ajil 413–​22 at 418–​21; K. Knop, ‘Introduction to the Symposium on Prosper Weil, “Towards Relative Normativity in International Law?”’ (2020) 114 ajil Unbound 67–​71 at 69. J. Tasioulas, ‘Prosper Weil and the Mask of Classicism’ (2020) 114 ajil Unbound 92–​6 at 92; A. E. Boyle and C. M. Chinkin, The Making of International Law (oup, 2007), p. 12; J. Brunée and C. Campbell-​Duruflé, ‘International Legislation’, mpepil, August 2022, paras. 1–​2. This presumption is reflected in the Lotus principle, which was derived from the so-​called Lotus decision of the Permanent Court of International Justice, see pcij, The Case of the s.s. “Lotus” (France v Turkey) [1927] pcij Series A No 10, in particular the Court’s statement at p. 8 (‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-​existing independent communities or

Introduction

7

actors34 only play a limited role in the making of international law.35 By now it is accepted that international organisations36 and international courts can –​ despite being non-​state actors –​determine the content and limits of states’ obligations to the extent that the states concerned have given their consent to their jurisdiction.37 Other non-​state actors such as ngo s, and individuals only play an indirect role.38 Positivism constitutes the distinction between law and non-​law. The need to define law is fundamental for the classical type of international law.39 As such, the determination of rules of international law is generally linked to the ‘sources of law doctrine’.40 While the dichotomy between law and non-​law was never fully upheld, and all international law was not clearly traceable to the consent of states;41 the rise

34 35 36

37 38

39 40

41

with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’). For an alternative reading of the Lotus decision, see J. Kammerhofer, ‘Gaps, the Nuclear Weapons Advisory Opinion and the Structure of International Legal Argument between Theory and Practice’ (2010) 80 British Yearbook of International Law 2009 333–​60; P. Hesse, ‘Comment: neither Sunken Vessel nor Blooming Flower! The Lotus Principle and International Humanitarian Law’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos, 2018) 80–​5. For the purpose of this book, the term ‘non-​state actor’ encompasses all those actors in international relations that are not states, cf. also M. Wagner, ‘Non-​State Actors’, mpepil, July 2013, para. 1. See generally ibid, para. 28 (speaking of an ‘indirect influence’). R. Wolfrum, ‘Sources of International Law’, mpepil, May 2011, paras. 40–​5 (‘It is a salient question of whether the existing foundations of international law allow for the establishment of international organizations which have norm-​creating functions not based upon consent of the addressees of the norms they prescribe’). Decisions of international courts only bind inter partes, cf. e.g. Article 59 icj Statute. See also ibid, para. 46. R. Wolfrum, ‘Some Reflections on the Making of International Law’, in G. Biaggini, O. Diggelmann and C. Kaufmann (eds.), Polis und Kosmopolis (Dike, 2015), p. 823 (explaining that ngo s ‘may be involved pre-​normative process, which leads to the development of new international legal regimes’). Tasioulas, ‘Prosper Weil and the Mask of Classicism’, 92; D. Burchardt, ‘The twilight of legal order? On the current challenges faced by the concept of a legal system’ (2018) 9(2) Transnational Legal Theory 110–​46 at 121–​2. See e.g. Wolfrum, ‘Sources of International Law’, paras. 12–​ 47; H. W. A. Thirlway, International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (A. W. Sijthoff, 1972), pp. 31–​45. See generally M. Goldmann, ‘Relative Normativity’, in J. d’Aspremont and S. Singh (eds.), Concepts for International Law (Edward Elgar Publishing, 2019). See also M. G.-​S. Rovira, ‘What Is Positivism Today?’ (2020) 114 ajil Unbound 87–​91 at 87; Yee, ‘The International Law of Co-​Progressiveness’, 99.

8 Introduction of globalisation and the attempts of dominant states to soften and hierarchise international law, especially after the end of the Cold War, has challenged this classical type of international law.42 2.1 Globalisation and the Role of Non-​state Actors Globalisation has increased the number of actors participating in the making43 of international law.44 First, there has been a discernible rise of international organisations following the Second World War.45 Second, other non-​state actors –​such as international courts and tribunals, ngo s and individuals –​ became increasingly relevant for the making of international law.46 The rise of non-​state actors is partly due to the stagnation of formal law-​making, which is related to the increased number of sovereign states during the 20th century.47 42

See in this context Weil, ‘Towards Relative Normativity in International Law?’, 418. (‘This time it is no longer a question of determining where the legal norm begins or ends: it is the very nature of the international normative system that is challenged and, by the same token, the functions for which it was created, which are its raison d’être’); J. E. Alvarez, ‘The Relativity Apocalypse Is Nigh’ (2020) 114 ajil Unbound 77–​81 at 78 (‘We are living in a post-​apocalyptic age where Weil’s “pathology” is the norm and legal positivism is more likely to be seen as passé’); J. Pauwelyn, R. A. Wessel and J. Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25(3) ejil 733–​63 at 734 . See also I.-​J. Sand, ‘Varieties of Authority in International Law: State Consent, International Organisations, Courts, Experts and Citizens’, in H. P. Olsen and P. Capps (eds.), Legal authority beyond the state (cup, 2018); Burchardt, ‘The twilight of legal order?’, 111 and the research of the kfg The International Rule of Law –​Rise or Decline? accessed 1. August 2023. 43 This book underlies a broad understanding of law-​making which includes creation, interpretation and ascertainment of rules of international law. 44 Burchardt, ‘The twilight of legal order?’, 123; Yee, ‘The International Law of Co-​ Progressiveness’, 99; E. Heffes, M. Kotlik and M. J. Ventura, ‘Introduction: The Functions and Interactions of Non-​State Actors in the Realm of International Humanitarian Law’, in E. Heffes, M. Kotlik and M. J. Ventura (eds.), International Humanitarian Law and Non-​ State Actors (t.m.c. Asser Press and Springer, 2020), p. 4. 45 On the role of international organisations, see e.g. J. E. Alvarez, International Organizations as Law-​Makers (oup, 2005). 46 For a general overview, see e.g. Boyle and Chinkin, The Making of International Law, pp. 42–​3. On the role of international courts and tribunals, see e.g. A. von Bogdandy and I. Venzke, ‘Beyond Dispute: International Judicial Institutions as Lawmakers’ (2011) 12(5) German Law Journal 979–​1003. On the role of ngo s, see e.g. S. Charnovitz, ‘Two Centuries of Participation: ngo s and International Governance’ (1997) 18(2) Michigan Journal of International Law 183–​286. On the role of international legal scholars, see e.g. C. Stahn and E. de Brabandere, ‘The Future of International Legal Scholarship: Some Thoughts on “Practice”, “Growth”, and “Dissemination”’ (2014) 27(1) ljil 1–​10. 47 On the increased number of states, see O. A. Hathaway and S. Shapiro, The Internationalists and Their Plan to Outlaw War (Penguin Press, 2018), p. 338.

Introduction

9

The stagnation of formal law-​making provided the possibility for more informal law-​making processes, which are –​in contrast to formal law-​making processes –​open to non-​state actors.48 This rise of non-​state actors and informal law-​making processes can be well observed for ihl: After decades of successful treaty-​making, no comprehensive and universal treaty has been concluded since the adoption of the Additional Protocols in 1977.49 The conclusion of the Protocols was already complicated by the large number of participating states and inclusion of liberation movements in the diplomatic conference.50 At the same time, ihl has been confronted with several legal, as well as factual, developments that were not present when the Geneva Conventions and the Additional Protocols were concluded. The adaption of treaty rules through interpretation and the ascertainment of customary law has been necessary in order to respond to these developments.51 This is all the more evident for non-​ international armed conflicts, which account for a large proportion of today’s armed conflicts.52 For non-​ international armed conflicts, ihl provides only for a few treaty rules. These are Article 3 common to the 1949 Geneva Conventions (Common

48

On the stagnation of formal law and the increase of informal law making processes, see e.g. Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles’, 733–​8; T. Kleinlein, ‘Matters of Interpretation: How to Conceptualize and Evaluate Change of Norms and Values in the International Legal Order’, in H. Krieger and A. Liese (eds.), Tracing Value Change in the International Legal Order: Perspectives from Legal and Political Science (oup, 2023), p. 69. Other reasons for the rise of non-​state actors can be found, for example, in the changed world order after the Second World War, which called for more supranational cooperation, or in the growing interest of civil society in international law. 49 For a discussion of the reasons for this standstill in treaty ihl, see M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare (Edward Elgar Publishing, 2019), paras. 4.30–​4.31; Y. Dinstein, ‘Keynote Address: The Recent Evolution of the International Law of Armed Conflict: Confusions, Constraints, and Challenges’ (2018) 51(3) Vanderbilt Journal of Transnational Law 701–​12 at 707–​8; Bugnion, ‘The International Committee of the Red Cross’, 193. 50 See Chapter 2, at 2.3.1. 51 For an analysis of legal and factual developments challenging ihl, see H. Krieger, B. Baade and L. Mührel, ‘Introduction: International Humanitarian Law in Areas of Limited Statehood’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos, 2018); H. Krieger, ‘International Legal Order’, in T. Risse, T. A. Börzel and A. Draude (eds.), The Oxford Handbook of Governance and Limited Statehood (oup, 2018). 52 Of 69 identified armed conflicts in 2018, 18 were international armed conflicts and 51 non-​international armed conflicts, see A. Bellal, The War Report: Armed Conflicts in 2018 (Geneva Academy, 2019), p. 19.

10 Introduction Article 3) and the second Additional Protocol from 1977, which hardly goes beyond the substance of Common Article 3.53 The need for the reinterpretation and ascertainment of laws to accommodate new phenomena in ihl opened the doors to the influence of non-​state actors. Cases in point are the jurisprudence of international courts over the last 25 years, particularly the International Criminal Tribunal for the former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr),54 the increased number of academic publications on ihl,55 and (military) manuals and guidelines drafted by non-​state actors56 –​among them the icrc. Starting in the late 1990’s, different expert groups57 and humanitarian organisations58

53

54

55 56

57

58

For further challenges to ihl, also regarding international armed conflicts (e.g. concerning the determination of the territorial and temporal application of ihl or the prerequisites of the principle of proportionality), see the agendas prepared by the icrc since 2003 for the International Conference of the Red Cross and Red Crescent addressing the most urgent challenges of contemporary armed conflict, e.g. icrc, ‘International humanitarian law and contemporary armed conflicts, Document prepared by the International Committee of the Red Cross for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, December 8–​19, 2015’ reprinted in (2015) 97(900) irrc 1427–​502. For the impact of the jurisprudence of the ictr and the icty on ihl, see e.g. R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda: Zur Bedeutung von internationalen Gerichtsentscheidungen als Rechtsquelle des Völkerstrafrechts (Berliner Wissenschaftsverlag, 2007); S. Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law (cup, 2014). On the growth of scholarship in general, see Stahn and de Brabandere, ‘The Future of International Legal Scholarship’, 6–​8. D. Stephens, ‘The Age of the Manual: The Impact of the Manual on International Law Applicable to Air and Missile Warfare’ (2015) 45 Israel Yearbook on Human Rights 19–​36 at 19 (The density and significance of military manuals in recent times led Dale Stepehens to the conclusion that ‘[w]‌e are living in the “age of the manual” where such publications are acquiring almost canonical status and there are reasons for this’). See e.g. L. Doswald-​Beck (ed.), San Remo manual on international law applicable to armed conflicts at sea (cup, 2005); M. N. Schmitt, C. H. Garraway and Y. Dinstein, The Manual on the Law of Non-​International Armed Conflict: With Commentary (2006); Program on Humanitarian Policy and Conflict Research at Harvard University (ed.), hpcr Manual on International Law Applicable to Air and Missile Warfare (cup, 2013); M. N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare: Prepared by the international group of experts at the invitation of the nato Cooperative Cyber Defence Centre of Excellence (cup, 2013). See e.g. J. M. Diller, Handbook on Human Rights in Situations of Conflict (Minnesota Advocates for Human Rights, 1997); F. Bouchet-​Saulnier, L. Brav and C. Olivier, The Practical Guide to Humanitarian Law, 2nd edn. (Rowman and Littlefield Publishers, 2007); icrc, Fight it right: Model manual on the law of armed conflict for armed forces (icrc, 1999).

Introduction

11

have elaborated upon specific aspects of ihl in manuals and guidelines.59 Frequently, these interpretations and law-​ ascertainments by non-​ state actors are given significant weight to determine the rules of ihl and are sometimes treated similarly to formal rules of international law.60 In addition, hybrid norms emerge that result from the interrelationship between norms of different formal origins.61 This development in particular calls the dichotomy between law and non-​law62 –​as well as state consent as the foundation of rules of international law –​into question.63 Moreover, the neutrality of the law comes under pressure when non-​state actors impose moral and ethical considerations on the law.64 The increasing importance of non-​state actors for international law has led to various claims in international legal scholarship about whether and/​or how these actors should be integrated into international law.65 A few scholars criticise the engagement with non-​state actors in international legal scholarship as a self-​preservation of the discipline and a needless expansion of the field of research.66 However, many scholars take the view that international law should 59

60 61 62

63

64 65 66

For an in-​depth analysis of expert manuals on ihl, see A. O. Petrov, Expert Laws of Wars: Restating and Making Law in Expert Processes (Edward Elgar Publishing, 2020). See also M. Bothe, ‘Neue Formen bewaffneter Konflikte –​neue Strukturen der internationalen Ordnung?’, in G. Biaggini, O. Diggelmann and C. Kaufmann (eds.), Polis und Kosmopolis (Dike, 2015), pp. 48–​9; C. Garraway, ‘The Use and Abuse of Military Manuals’ (2004) 7 yihl 425–​40. See e.g. Petrov, Expert Laws of Wars, pp. 1–​3. For an analysis of the acceptance of the icrc’s interpretations and law-​ascertainments in academia and legal practice, see Chapter 2. Burchardt, ‘The twilight of legal order?’, 111. Ibid, 123. Weil, ‘Towards Relative Normativity in International Law?’, 421 (‘Normativity is becoming a question of “more or less”’); R. Collins, ‘Consent, Obligation and the Legitimate Authority of International Law’, in H. P. Olsen and P. Capps (eds.), Legal authority beyond the state (cup, 2018), p. 208, see also p. 230; A. van Mulligen, ‘Normativity’, in J. d’Aspremont and S. Singh (eds.), Concepts for International Law (Edward Elgar Publishing, 2019), p. 665; M. Koskenniemi, ‘Formalism, Fragmentation, Freedom: Kantian Themes in Today’s International Law’ (2007) 4 No Foundations: Journal of Extreme Legal Positivism 7–​28 at 11. Cf. M. N. Schmitt and S. Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’ (2015) 91 ils 171–​215 at 198 (‘It is no exaggeration to say that jurists, ngo s, scholars and other non-​State actors presently have greater influence on the interpretation and development of ihl than do States’). Cf. Yee, ‘The International Law of Co-​Progressiveness’, 99. Note in this context L. B. Sohn, ‘Sources of International Law’ (1996) 25(1) Georgia Journal of International and Comparative Law 399–​406 at 399 (‘Every few years we invent a new method … for crystallising international law’). See e.g. J. d’Aspremont, ‘International Law-​Making by Non-​State Actors: Changing the Model or Putting the Phenomenon into Perspective?’, in C. Ryngaert and M. Noortmann (eds.), Non-​state actor dynamics in international law (Ashgate, 2010), pp. 180–​2; J. d’Aspremont, ‘Softness in International Law: A Self-​Serving Quest for New Legal Materials’

12 Introduction be seen as pluralistic and that non-​state actors contribute to the making of international law.67 The approaches vary in the extent to which they challenge the foundations of the classical type of international law. Some approaches seek to transform practices of (certain) non-​state actors into positive international law without attempting to (fundamentally) open the formal law-​making processes. They require a link to state consent and consider only a restricted role for non-​state actors.68 Such approaches are ultimately rather moderate. While they envision a role for non-​state actors, they still hold the state as the primary mediator of law-​making by channelling the law contributions of non-​ state actors through the state. Others emphasise the role of interpretation for international law-​making by arguing that interpretation gives meaning to treaty texts,69 and thus

67

68

69

(2008) 19(5) ejil 1075–​93 at 1090–​1. Cf. also M. W. Janis, International Law, 5th edn. (Aspen Publishers, 2008), p. 84 (‘For those positivists who believe that only states create international legal rules, the very idea that individuals may contribute to the making of an international law may be heresy’). See e.g. V. Lowe, ‘The Politics of Law-​Making: Are the Method and Character of Norm Creation Changing?’, in M. Byers (ed.), The Role of Law in International Politics (oup, 2001); M. W. Reisman, ‘The Democratization of Contemporary International Law-​Making-​ Processes and the Differentiation of Their Application’, in R. Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (Springer, 2005), p. 15; With regard to the making of ihl, see Sassòli, International Humanitarian Law, para. 4.55; B. Wahlhaus and H. Lidicker, ‘Special Issue: The Law of Armed Conflict’ (2018) 51(3) Vanderbilt Journal of Transnational Law i–​i i at i. See e.g. S. Sivakumaran, ‘Beyond States and Non-​State Actors: The Role of State-​ Empowered Entities in the Making and Shaping of International Law’ (2017) 55(2) Columbia Journal of Transnational Law 343–​94 at 351 (who speaks of state-​empowered entities, which play a stronger role in the law-​making possesses than other non-​state actors); E. Klein, ‘Impact of Treaty Bodies on the International Legal Order’, in R. Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (Springer, 2005), p. 575.; B. Simma, ‘Commissions and Treaty Bodies of the UN System’, in R. Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (Springer, 2005). This was already acknowledged by Humphrey Waldock (Special Rapporteur for the law of treaties and essentially involved in the drafting of the vclt). See ilc, Third report on the Law of treaties, by Sir Humphrey Waldock, Special Rapporteur, UN Doc a.cn.4/​167, a.cn.4/​167/​Add.1–​3, (1964) 16 unybilc Vol. ii 1–​65, 53 (‘The process of interpretation, rightly conceived, cannot be regarded as a mere mechanical one of drawing inevitable meanings from the words in a text, or of search for and discovering some pre-​existing specific intention of the parties with respect to every situation arising under a treaty … In most cases interpretation involves giving a meaning to a text’). See also R. Christensen and H. Kudlich, ‘Die Auslegungslehre als implizite Sprachtheorie der Juristen’ (2002) 88(2) Archiv für Rechts-​und Sozialphilosophie 230–​46 at 234; P. Allott, ‘Interpretation: An Exact Art’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (oup, 2015), pp. 373–​4.

Introduction

13

complements the role of sources for the making of international law.70 According to this approach, the relevance of interpretations does not necessarily depend on the legal status of the interpreter, but any interpretation has the potential to shift the meaning of a legal norm and may offer a new reference point in legal discourse.71 The same reasoning can be adopted to the ascertainment of customary law.72 Therefore, interpretations and law-​ascertainments by non-​state actors are considered to contribute to the making of international law within this approach.73 Meanwhile, other approaches, such as studies from global governance, propose a different idea of normativity –​for example, one based on the notion of publicness rather than on state consent. Here, the publicness requires authority to be ‘exercised on the basis of a competence instituted by a common international act of public authorities, mostly states, to further a goal which they

70

71 72

73

I. Venzke, ‘Sources in Interpretation Theories: The International Law-​Making Process’, in S. Besson and J. d’Aspremont (eds.), The Oxford handbook of the sources of international law (oup, 2017), p. 401. See also J. Klabbers, ‘On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization’ (2005) 74(3) Nordic Journal of International Law 405–​28 at 406–​7 (‘Whoever controls this process [of interpretation] controls the meaning of the treaty’); S. Dellavalle, ‘Law as a Linguistic Instrument Without Content? On the Epistemology of Koskenniemi’s Understanding of Law’ (2017) 77(1) Heidelberg Journal of International Law 199–​233 at 232–​3. For further reading, see A. Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (oup, 2016), pp. 287–​310. I. Venzke, How interpretation makes international law: On semantic change and normative twists (oup, 2012), p. 17. On the one hand, this involves the interpretation of the proper rules of customary international law, see Venzke, ‘Sources in Interpretation Theories’, p. 402; P. Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2017) 19(1) International Community Law Review 126–​55 at 126. Already the verbalisation of the identified rules could be seen as an act of interpretation since it involves the assignment of meaning to the words used, see Allott, ‘Interpretation’, p. 386. On the other hand, it involves the interpretation of secondary rules that determine what custom is, see D. B. Hollis, ‘Sources in Interpretation Theories: An Interdependent Relationship’, in S. Besson and J. d’Aspremont (eds.), The Oxford handbook of the sources of international law (oup, 2017), p. 427; J. d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-​ Determination and Law-​ Ascertainment Distinguished’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (oup, 2015), p. 112. For an examination of the role of individual actors, see A. Zidar, ‘Interpretation and the International Legal Profession: Between Duty and Aspiration’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (oup, 2015) and A. Bianchi, ‘The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (oup, 2015), pp. 39–​43.

14 Introduction define, and are authorized to define, as a public interest.’74 This allows for an inclusion of acts of non-​state actors that affect ‘the freedom of others in pursuance of a common interest’ regardless of their bindingness.75 These explanations on the different approaches to the inclusion of non-​state actors in international law are not exhaustive and this book is not intended to discuss them in detail –​although the results of this book might have bearing on such discussions. The purpose of discussing these different approaches is to demonstrate that the classical type of international law is conceptually –​in addition to empirically –​under pressure.76 The methods that these approaches provide to define the role of non-​state actors within international law inform the method used within this book to analyse the role of the icrc’s outputs for international law. States –​and the International Law Commission in particular –​have endeavoured to strengthen the foundations of the classical type of international law in response to the increasing importance of non-​state actors and the related theoretical approaches.77 Chapters 1 and 4 explore how these endeavours affect the role of the icrc’s interpretations and law-​ascertainments and the type of international law.

74 75

76 77

A. von Bogdandy, P. Dann and M. Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9(11) German Law Journal 1375–​400 at 1383. See the Heidelberg Project on International Public Law, A. von Bogdandy, M. Goldmann and I. Venzke, ‘From Public International to International Public Law: Translating World Public Opinion into International Public Authority’ (2017) 28(1) ejil 115–​45 at 117. For further reading, see Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law’. For a similar approach, see B. Kingsbury, N. Krisch and R. B. Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68(3) Law and Contemporary Problems 15–​61. Burchardt, ‘The twilight of legal order?’. See e.g. the Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law, 26 June 2016 accessed 31 August 2023 (which seeks to reassert the centrality of sovereignty). The International Law Commission has adopted a more restrictive position in its 2018 completed works on subsequent agreements and subsequent practice in relation to the interpretation of treaties and on the identification of customary international law, see unga, Report of the International Law Commission, Seventieth session (30 April-​1 June and 2 July-​10 August 2018), UN Doc a/​73/​ 10 (2018) pp. 16–​116 and 117–​56.

Introduction

15

Softening and Hierarchisation of International Law by Dominant States Another challenge to the classical type of international law stems from the aim of dominant states at a softer and more hierarchical international law, which calls positivism and voluntarism as the foundations of international law into question. In examining the role of the icrc’s outputs for ihl, it is paramount to question whether the icrc’s interpretations and law-​ascertainments benefit from the softening of the law or whether they oppose the attempts of the dominant states. In particular, these attempts to soften and hierarchise international law find expression in the reluctance of dominant states to join treaties or withdraw therefrom, the disregard of rules of international law and the establishing of informal rules that allow for both a widening of the dominant states’ own freedom of action and an imposition of rules for others.78 The US has especially been accused of trying to create a ‘hegemonic international law’ that allows it to act outside of the international legal framework since the end of the Cold War.79 With regard to ihl, the US decided not to become a party to a number of treaties80 and has refused to accept the customary status of rules well established in treaty-​based ihl specifically with regard to non-​international armed conflicts.81 Instead, it makes use of its domestic laws and court decisions 2.2

78

79 80

81

N. Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ (2005) 16(3) ejil 369–​408. R. Knox, ‘Hegemony’, in J. d’Aspremont and S. Singh (eds.), Concepts for International Law (Edward Elgar Publishing, 2019), pp. 328–​60. For an in-​depth analysis of disregard of international law, see B. Baade and others (eds.), Cynical International Law? Abuse and Circumvention in Public International and European Law (Springer, 2020). D. F. Vagts, ‘Hegemonic International Law’ (2001) 95(4) ajil 843–​8 at 843–​4; Knox, ‘Hegemony’, pp. 344–​5. See also the various contributions in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (cup, 2005). The US did not become a party to the following treaties on ihl and related fields of international law adopted after 1990: Treaty on the Prohibition of Nuclear Weapons; Arms Trade Treaty; Convention on Cluster Munitions; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict; Rome Statute; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction. In addition, the US still refuses to ratify the 1977 Additional Protocols although the US delegation played an important role in their adoption and since Reagan different administrations considered the ratification of the 1977 Additional Protocols, see e.g. R. Reagan, ‘Letter of Transmittal’ (1887) 81(4) ajil 910–​2; T. Meron, ‘The Time Has Come for the United States to Ratify Geneva Protocol I’ (1994) 88(4) ajil 678–​86; J. B. Bellinger, ‘Obama’s Announcements on International Law’, Lawfare, 8 March 2011. For an in-​depth discussion of the US’ refusal to accept the Study, see Chapter 2, at 3.3.1.

16 Introduction to interpret or even replace rules of ihl.82 For example, US officials almost exclusively referred to US state practice when criticising the Study and the Guidance.83 In 2015, the US Department of Defense published its Law of War Manual with detailed explanations, not only as instructions for the US military forces, but also to promote the US legal opinions and strategic interests. Many sources cited in the manual refer to past practices of the US in applying the laws of war.84 Other dominant states are also pursuing the strategy of softening and hierarchising international law in order to maintain and strengthen their influence. The current shift from a unipolar to a multipolar world order seems to reinforce this development as some emerging powers seek to change the international law that developed in the post-​Cold War era.85 For ihl, the refusal of China and Russia to become a party to the 2013 Arms Trade Treaty, the 2008 Convention on Cluster Munitions or the 2005 Additional Protocol iii to the 1949 Geneva Conventions86 may serve as an indication of this development. In contrast, China (in 1983) and Russia (in 1989) became party to the 1977 Additional Protocols,87 which was not ratified by the US. The reluctance of 82

On the use of domestic law by dominant states, see also Krisch, ‘International Law in Times of Hegemony’, p. 380; Knox, ‘Hegemony’, pp. 347–​8. David Hughes and Yahli Shereshevsky point out that the US and other dominant states even try to establish the interpretation of (humanitarian) international law according to their ideas through academic contributions, see D. Hughes and Y. Shereshevsky, ‘State-​Academic Lawmaking’ (2023) 64(2) Harvard International Law Journal 253–​309. 83 See Chapter 2, at 3.1, 3.3.1 and 4.1. 84 Office of General Counsel Department of Defense, Department of Defense Law of War Manual, Washington, June 2015 (updated May 2016), p. v. 85 Cf. also H. Krieger and A. Liese, ‘Introduction: “Value Change in the International Legal Order”’, in H. Krieger and A. Liese (eds.), Tracing Value Change in the International Legal Order: Perspectives from Legal and Political Science (oup, 2023), pp. 15–​6. 86 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. 87 Note in this context the declaration made by the Soviet Union at the time of ratification, which inter alia stated that the Soviet Union’s ratification ‘reflects the spirit of new political thinking and demonstrates the Soviet State’s commitment to humanizing international affairs and strengthening the system of international law’ and expresses the Soviet Union’s recognition of the competence of the International Fact-​Finding Commission in accordance with Article 90(2) ap i, see Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949; Reservations, Declarations and communications made at the time of or in reference to ratification or accession as at 30 June 1992, icrc, 15 July 1992, pp. 36–​37. In 2019, however, Russia withdrew this declaration, see Withdrawal of a declaration by the Russian Federation last accessed 31 August 2023.

Introduction

17

states led by India and Russia at the 31st and 32nd International Conference of the Red Cross and Red Crescent to agree on new compliance mechanisms for ihl should also be seen in this context.88 Attempts at softening and hierarchising international law do not only affect primary rules. Secondary rules are also affected when dominant states endeavour to make law-​making processes more flexible and to introduce inegalitarian elements.89 This trend can be observed, above all, in the discussion about the identification of customary international law.90 It may subvert the principle of sovereign equality of states, which is fundamental to the classical type of international law and establishes a formally equal position of all states in the law-​making process.91 Here, dominant states disrupt the formal equality of states by seeking to ensure that particular weight is given to their conduct. For instance, in its response to the Study and to the work of the International Law Commission on the identification of customary international law, the US promoted the doctrines of persistent objector and specially affected states in order to avoid the development of new rules that conflict with its own conduct.92 At the same time, dominant states make efforts to downplay the role of non-​state actors in the law-​making process.93 In their responses to the International Law Commission, dominant states stressed that the role of non-​state actors’ practice for the identification of customary international law or the interpretation 88

89 90 91

92 93

icrc, ‘No agreement by States on mechanism to strengthen compliance with rules of war’, 10 December 2015 accessed 31 August 2023. For an in-​depth analysis of Russia’s contemporary approach to ihl, see M. Riepl, Russian Contributions to International Humanitarian Law: A contrastive analysis of Russia’s historical role and its current practice (Nomos, 2022) pp. 140–​52. Krisch, ‘International Law in Times of Hegemony’, 392 and 396. A. Skordas, ‘Hegemonic Custom?’, in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (cup, 2005). Ibid, 377–​8; Knox, ‘Hegemony’, p. 347. See also N. Krisch, ‘More Equal than the Rest? Hierarchy, Equality and US Predominance in International Law’, in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (cup, 2005); M. Cosnard, ‘Sovereign equality –​“the Wimbledon sails on”’, in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (cup 2005). For an in-​depth discussion, see Chapter 3, at 1.2.3. Krisch, ‘International Law in Times of Hegemony’, 392. The US, in particular, have questioned the role to be played by international institutions, see e.g. US Secretary of State Pompeo, Restoring the Role of the Nation-​State in the Liberal International Order, Remarks at the German Marshall Fund, Brussels, 4 December 2018 accessed 31 August 2023. See also H. Krieger, ‘Populist Governments and International Law’ (2019) 30(3) ejil 971–​96 at 980–​3.

18 Introduction of treaties can only be an indirect one. This was particularly stressed for the icrc.94 Points of Departure 2.3 The examination of the role of the icrc’s interpretations and law-​ ascertainments for ihl is informative for the type of international law in four regards. The first two points mainly focus on ihl, whereas the third and the fourth points concern international law in general. First, the icrc, by virtue of its legal form, is not established on the basis of state consent but is a non-​governmental organisation founded in Swiss law.95 The examination of its interpretations and law-​ascertainments sheds light on the extent to which non-​state actors can participate in the making of ihl. The fact that the icrc was founded in 1863 allows for the changing perceptions of the icrc’s role under international law to be captured and analysed. While still considered to be a special actor, since the 1990s, a change in the roles attributed to the icrc can be observed. Historically, the icrc was merely regarded as a subject of international law sui generis.96 Today, on the one hand, the distinction of the icrc’s legal status from international organisations is emphasised –​ for instance by the US and the International Law Commission –​to downplay the icrc’s role for international law.97 On the other hand, the distinction of the icrc’s legal status from other non-​state actors is stressed by the icrc and many international humanitarian law scholars and a parallel to the legal status of international organisations is claimed.98 Significantly, whether the icrc has a competence to interpret and ascertain rules of ihl based on its role under the Geneva Conventions, the Additional Protocols and the Statutes of the Movement reveals whether the icrc may legally decide on the substance and limits of ihl. The position that the icrc has such a competence has emerged in connection with the icrc’s more recent outputs. However, the accuracy of this position has not yet been fully investigated.99 The answer to the question 94 95 96 97 98 99

For an in-​depth discussion, see Chapter 4, at 1 and 4. According to Article 2(1) Statutes of the International Committee of the Red Cross (adopted at the Assembly meeting on 21 December 2017), the ‘icrc is an association governed by Article 60 and following of the Swiss Civil Code’. See e.g. O. Kimminich, Einführung in das Völkerrecht, 2nd edn. (Saur, 1983), pp. 205–​7. According to David Forsythe, the icrc was, in its origins, close to being a governmentally organised non-​governmental organisation, see Forsythe, The Humanitarians, p. 169. See e.g. unga, Report of the International Law Commission (2018), pp. 41–​2. See e.g. E. Debuf, ‘Tools to do the job: The icrc’s legal status, privileges and immunities’ (2015) 97(897–​898) irrc 319–​44. For an in-​depth discussion, see Chapter 1.

Introduction

19

of the icrc’s competence to interpret and ascertain rules of ihl in particular allows conclusions to be drawn about the distribution of legal power in ihl. Can the icrc legally determine what ihl is? Second, the conclusion about the role of the icrc’s interpretations and law-​ascertainments in legal practice and academia has consequences for the dichotomy between law and non-​law; and the role of state consent as a basis of ihl. Two contrasting points of departure arise here: On the one hand, the icrc’s interpretations and law-​ascertainments may contribute to the softening of ihl, especially if the question of whether the icrc has a competence to interpret and ascertain rules of ihl is answered in the negative. To this end, the book examines to what extent, and for what reasons, weight is given to the icrc’s interpretations and law-​ascertainments. On the other hand, the icrc strives for formally binding rules for ihl because informal rules or rules that do not apply equally to all parties of a conflict may impede the protection of victims of armed conflict. For this purpose, the icrc generally stresses the importance of hard law and the consensus of states.100 The analysis of the role of the icrc’s interpretations and law-​ascertainments in legal practice and academia reveals whether the icrc manages to maintain the relevance of the Geneva Conventions and the Additional Protocols and to establish rules of customary ihl despite the increase of soft law in ihl produced by non-​state actors and the attempts by dominant states to soften and hierarchise ihl. Third, the icrc publishes the methodology on which its interpretations and law-​ascertainments are based. This methodology, inter alia, foresees a low threshold for the consideration of other treaties in the interpretation of the Geneva Conventions and Additional Protocols and rejects the doctrine of specially affected states for the identification of customary ihl. This raises the questions of whether and to what extent the icrc influences the rules on the identification and interpretation of international law.101 As structural rules, these rules determine the conditions for what constitutes international law and therefore shape the type of international law that emerges.102 In which direction are the structural rules of international law, and thus international law itself, changing due to the icrc’s influence? 100 Cf. e.g. the introduction to the methodology underlying the Study, Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxxvii–​l i. 101 For an in-​depth analysis, see Chapter 3. 102 Cf. e.g. S. Besson, ‘Theorizing the Sources of International Law’, in J. Tasioulas and S. Besson (eds.), The Philosophy of International Law (oup, 2010); Y Ōnuma, International Law in a Transcivilizational World (cup, 2017), pp. 103–​85.

20 Introduction Fourth, the question of how international law governs the use of the icrc’s outputs is informative for the type of international law. This question also concerns the structural rules of international law. However, the question does not relate to the icrc’s influence on the structural rules, but it asks to what extent the icrc’s outputs itself may be considered for the determination of international law. As shown above, there is much uncertainty, for example, about their qualification under the vclt’ rules on interpretation and under Article 38 (1) icj Statute.103 3

Methodology

This book relies on two basic concepts of authority to examine the role of the icrc’s interpretations and law-​ascertainments for ihl. These concepts of authority are the concept of competence and the concept of de facto authority. Both concepts are further discussed in Chapter 1. Whereas competence requires an act of delegation by states, de facto authority depends on recognition. For the analysis of the de facto authority of the icrc’s interpretations and law-​ascertainments in Chapter 2, the reactions in academia, the jurisprudence of international courts and tribunals and state practice to five of the icrc’s publications are taken into account as sources of recognition. For state practice, military manuals and decisions of national courts in particular are considered since both sources have a significant weight in ihl discourses.104 The same applies for the international jurisprudence.105 A wide range of international courts and tribunals are studied to analyse the use of the icrc’s interpretations and law-​ascertainments. The jurisprudence of the icty is the main focus of analysis due to the fact that no other international court or tribunal has issued as many judgments relating to ihl as the icty.106 1 03 For an in-​depth analysis, see Chapter 4. 104 For military manuals, see e.g. E. A. Partington, ‘Manuals on the Law of Armed Conflict’, mpepil, August 2016, para. 8; M. Bothe, ‘Customary International Humanitarian Law: Some Reflections on the icrc Study’ (2005) 8 yihl 143–​78 at 176. For national court decisions, see e.g. S. R. Ratner and R. Giladi, ‘The Role of the International Committee of the Red Cross’, in A. Clapham and others (eds.), The 1949 Geneva Conventions (oup, 2015), paras. 60–​1. 105 See e.g. J. Crowe and K. Weston-​Scheuber, Principles of International Humanitarian Law (Edward Elgar Publishing, 2013), pp. 27–​8; Sassòli, International Humanitarian Law, paras. 5.234, 9.69. 106 Compared to the Statute of the ictr (genocide, crimes against humanity, and violations of Common Article 3 and Additional Protocol ii) and the Rome Statute (genocide, crimes against humanity, and war crimes), the icty Statute (grave breaches of the Geneva

Introduction

21

In addition, the jurisprudence of the ictr, the International Criminal Court, the Special Court for Sierra Leone, the European Court of Human Rights, the Inter-​American Commission for Human Rights and the Inter-​American Court of Human Rights are taken into account. Although the International Court of Justice rarely cites teachings in its decisions,107 states in public hearings108 and written statements109 –​as well as individual judges in their separate or dissenting opinions110 –​have built their arguments on the icrc’s interpretations and law-​ascertainments.111 While the statements by the parties before the International Court of Justice are considered as state practice, the judges’

107

108

109

110

111

Conventions, war crimes and genocide and crimes against humanity) gives priority to the prosecution of violations of applicable ihl instruments, see F. Kalshoven, ‘From International Humanitarian Law to International Criminal Law’ (2004) 3(1) Chinese Journal of International Law 151–​62 at 154. J. Kammerhofer, ‘Lawmaking by scholars’, in C. Brölmann and Y. Radi (eds.), Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar Publishing, 2016), p. 307; S. T. Helmersen, ‘Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice’ (2019) 30(2) ejil 509–​35 at 510 (‘the Court has cited specific works of teachings on a point of law only seven times in five cases’). See e.g. Public sitting, cr 2004/​1 (23 February 2004) held on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory accessed 31 August 2023, p. 33; Public sitting, cr 2011/​21 (16 September 2011) held on Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, p. 23; Public sitting, cr 2015/​4 (15 April 2015) held on Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) accessed 31 August 2023, p. 45. See e.g. Written Statement submitted by Palestine (30 January 2004) on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory accessed 31 August 2023, para. 38; Annexes to the Counter-​Memorial of Italy (14 December 2009) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, Annex 8, pp. 26, 30. See e.g. icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, icj Rep 2002, p. 3, Separate Opinion of Judge Bula-​Bula, p. 100, paras. 66, 69–​ 70; icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, icj Rep 2005, p. 168, Separate Opinion of Judge Simma, p. 334, paras. 34, 39. According to Robert Jennings, teachings play a greater role in the International Court of Justice reasoning than the absence of citations in judgments and advisory opinions suggests, see R. Y. Jennings, ‘Reflections on the Subsidiary Means for the Determination of Rules of Law’, in R. Y. Jennings (ed.), Studi di diritto internatzionale in onore di Gaetano Arangio-​Ruiz (Editoriale Scientifica, 2004), p. 328.

22 Introduction individual opinions throw light on the International Court of Justice’s deliberations in preparing its decisions.112 Therefore, the International Court of Justice is included among the judicial bodies studied for the jurisprudential contribution that can be discerned from the judges’ opinions. Some decisions, especially observed with regard to the icty and the ictr, do not refer explicitly to the icrc’s interpretations and law-​ascertainments. The same can be observed for many military manuals, which do not provide references to the sources they rely on other than treaty law.113 This does not mean that the icrc’s interpretations and law-​ascertainments were not considered. For instance, some decisions of the icty and the ictr only include the icrc’s interpretations and law-​ascertainments in the glossary under ‘legal citations’ or ‘other legal authorities’, but do not explicitly refer to them in the legal reasoning.114 Likewise, some military manuals adopt the icrc’s interpretations and law-​ascertainments, but do not cite them.115 It is therefore conceivable that the icrc’s interpretations and law-​ascertainments have found more consideration in legal practice than references in legal materials, such as court decisions or military manuals, suggest. As regards academia, legal scholars also have an influential say in discourses on ihl and are therefore considered for the analysis of the authority of the icrc’s interpretations and law-​ascertainments. Moreover, the consideration of academia may compensate for an incomplete picture of how the icrc’s interpretations and law-​ascertainments are received in legal practice since the 1 12 Helmersen, ‘Finding the Most Highly Qualified Publicists’, 510. 113 See e.g. Ministère de la Défense de la République Française, Manuel de Droit des Conflits Armés (2012); Bundesministerium der Verteidigung (Germany), Law of Armed Conflict –​ Manual: Joint Service Regulation (ZDv) 15/​2 (Berlin, 2013). For a prior version of the German military manual, the publication ‘Handbuch des humanitären Völkerrrechts in bewaffneten Konflikten’ by Dieter Fleck published in 1994 provides for valuable background information on the sources relied on. Later editions were ‘no longer connected to a single national manual’ but aimed ‘at offering a best practice manual to assist scholars and practitioners worldwide’, see D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 2nd edn. (oup, 1999), p. xiv. In this book, these editions are not considered as state practice, but as academic contributions. 114 See e.g. icty, Prosecutor v Kvočka et al. (Judgment) Case No it-​98-​30/​1-​T (2 November 2001). For reasons for the different citing traditions by judges, see S. T. Helmersen, ‘The Application of Teachings by the International Tribunal for the Law of the Sea’ (2020) 11(1) Journal of International Dispute Settlement 20–​46 at 39–​44; N. Stappert, ‘A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals’ (2018) 31(4) ljil 963–​80 at 975. 115 E.g. the German military manual adopts the Guidance’s concept of continuous combat function without referring to the Guidance, Bundesministerium der Verteidigung (Germany), Law of Armed Conflict –​Manual, para. 1308.

Introduction

23

boundaries between academia and legal practice are fluid in terms of personnel.116 Governments and the military often do not publicly share their legal views.117 Therefore, academic contributions written by government officials and military lawyers in their personal capacity are the only indications of these positions.118 This book does not claim to provide a complete picture of the reception of the icrc’s interpretations and law-​ascertainments in academia and legal practice. There are several barriers that necessarily limit the scope of this study. First, there are language barriers for the book’s author that made it difficult to find sources in languages the author does not speak. Secondly, since the discourses on ihl predominantly take place in English, mainly states and academics based in the Western World take part in these discourses.119 This is presumably due to language barriers for academics from the non-​Western World, but also due to the fact that certain issues of ihl seem to have less relevance in many non-​Western states.120 For instance, in China, ihl is deemed to be situated among the least important branches of international law in academia.121 An inquiry by Anthea Roberts of public international law subjects that were 116 M. Ruffert, ‘Zwischen Quelle und Gericht: Funktion der Wissenschaft bei der Identifikation des Völkerrechts’, in N. Dethloff, A. Reinisch and G. Nolte (eds.), Freiheit und Regulierung in der Cyberwelt –​Rechtsidentifikation zwischen Quelle und Gericht (c.f. Müller, 2016). 117 Sassòli, International Humanitarian Law, para. 4.38. 118 Ibid, para. 4.83. 119 Ibid, para. 4.38. 120 In this context, note that many military manuals of developing countries explain only basic ihl principles and do not address any of today’s challenges for ihl such as private military and security companies or direct participation in hostilities, see e.g. Republic of Sierra Leone Armed Forces, The Law of Armed Conflict: Instructor Manual for the Republic of Sierra Leone Armed Forces (rslaf) (2007); Rèpublique du Mali, Ministère de la Dèfense et des Anciens Combattants, Etat Major Général des Armées, Manuel du dca: Droit des Conflits Armés (2016); Nepal, by order of the Chief of the Army Staff, Nirendra Prasad Aryal, Nepal Army Handbook on Law of Armed Conflict: Fighting by the Rules (2011). In 2021, the Uganda Christian University founded a blog that is dedicated to ihl (https://​ihl​.ucu​ .ac​.ug​/afri​can​-pol​icy​/)​. However, the blog posts only cover general topics. 121 Dr. Zhuo Liang, llm, Lecturer in International Law at Zhongnan University of Economics and Law, expalined this book’s author that there has been no ihl-​related trial in China since 1956. Chinese courts never cite the icrc’s interpretations and law-​ascertainments. Chinese international legal scholars have long been positioning themselves as followers of their Western counterparts. For most Chinese international legal scholars, Western-​ taught international law is believed as ‘authentic’. Therefore, except for the issues clearly affecting China’s state interests, Chinese academia generally lacks a satisfactorily critical mind or strong motivation to question the legal positions of universal international institutions which are seen as the representatives of the international community. See also A. Roberts, Is International Law International? (oup, 2019), pp. 156–​7.

24 Introduction recommended for research or selected for funding in China between 2007 and 2014 reveals that no ihl projects were recommended or selected.122 Yet, the book partly includes sources in languages other than English, including Russian and Chinese sources.123 However, these sources only serve as indications of how the icrc’s interpretations and law-​ascertainments are received in these countries. 4

Chapter Outline

To analyse the impact of the icrc’s interpretations and law-​ascertainments on ihl, the book proceeds in the following steps: The first chapter interrogates the authority of the icrc to interpret and ascertain ihl. In order to understand whether the icrc possesses legal authority, the chapter explores if the icrc’s role under the Geneva Conventions, the Additional Protocols and the Statutes of the Movement provide the icrc with a competence to interpret and ascertain ihl. Furthermore, the chapter asks what non-​legal factors form the icrc’s factual authority to interpret and ascertain ihl. The second chapter specifies the factual authority of five publications of the icrc because factual authority depends on different factors and varies over time. To this end, the chapter examines in five case studies how the Pictet Commentaries, the ap Commentaries,124 the Study, the Guidance and the new Commentaries are received in academia and legal practice. The marks of their authority are identified on this basis. The five publications were selected as the case studies because, according to an initial assessment, they are the most relevant in the discourses on ihl125 and because, despite the involvement of external experts, they can be attributed solely to the icrc.126 1 22 Roberts, Is International Law International?, pp. 367–​88. 123 The book’s author thanks Dr. Zhuo Liang, llm, for sharing his research results on Chinese state practice and academic contributions in Chinese with the present author. Sources in other languages than Chinese were translated by the book’s author. 124 For a discussion of the commentary to the Third Additional Protocol covering the adoption of an additional Red Cross and Red Crescent emblem, see Mohr and Policinski, ‘From the Gilded Age to the Digital Age’, 1906–​7. 125 Note in this regard that, e.g., the commentary on the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field lost its relevance after the revision of the Convention in 1949. 126 E.g., the icrc participates in many expert processes, such as the Copenhagen Process on the Handling of Detainees in International Military Operations, which led to the

Introduction

25

The third chapter investigates whether, and (if so) to what extent, the icrc’s interpretations and law-​ascertainments affect the structural rules of international law. The chapter asks: How does the Study shape the understanding of the identification of customary international law? Do the Commentaries and the Guidance influence the standards for the interpretation of treaties? The fourth chapter examines how international law governs the use of the icrc’s outputs. The chapter categorises the icrc’s interpretations and law-​ ascertainments under Article 38 (1) icj Statute and asks whether they constitute means of interpretation under the vclt or dictates of public conscience under the Martens Clause. To this end, the chapter takes into account current developments in legal doctrine. The conclusion provides an outlook for the future role of the icrc’s interpretations and law-​ascertainments for ihl and proposes how they should be dealt with by different actors.

adoption of 16 Principles and Guidelines accessed 31 August 2023. It would, however, be difficult to determine the icrc’s role in these processes and the result of such an inquiry could hardly be generalised.

­c hapter 1

The Authority of the International Committee of the Red Cross 1

The Concept of Authority

In everyday language, various meanings are attributed to the term ‘authority’. This is demonstrated in English dictionaries, which suggest various synonyms, such as –​among others –​‘prerogative’, ‘expert’, ‘power’, ‘force’, ‘judge’ or ‘law’.1 Authority has also been conceptually defined and used in many different ways and contexts in philosophical, political and legal discourses.2 Therefore, it needs some specification before it is applied to the icrc. The concept of authority has its roots in ancient Roman politics where auctoritas described the capacity of a person or a collective to initiate and inspire respect.3 As such auctoritas did not embrace a right to command, but an imputed right to be listened to.4 Its initiatives did not legally bind. Rather, they were morally binding.5 The qualities that led to the recognition of auctoritas were manifold and included knowledge, prudence, past achievements or a lineage of eminent predecessors, among others.6 In contrast, potestas described the legal right to act derived from an office. Unlike auctoritas, it could be

1 See e.g. Thesaurus, ‘authority’ accessed 31 August 2023; Collins, ‘authority’ accessed 31 August 2023. See also N. Uphoff, ‘Distinguishing Power, Authority and Legitimacy: Taking Max Weber at His Word by Using Resources-​Exchange Analysis’ (1989) 22(2) Polity 295–​322 at 295–​8; H. M. Höpfl, ‘Power, Authority and Legitimacy’ (1999) 2(3) Human Resource Development International 217–​34 at 219 (‘common usage is not greatly concerned with distinctions between power, might, authority; even the greatest thinkers sometimes use them haphazardly’). 2 R. B. Friedman, ‘On the Concept of Authority in Political Philosophy’, in J. Raz (ed.), Authority (New York University Press, 1990), pp. 62–​3. 3 Höpfl, ‘Power, Authority and Legitimacy’, 219–​22. The Roman Senate possessed auctoritas, see T. Mommsen, Römisches Staatsrecht, 3rd edn. (cup, 2010 [1888]), pp. 1022–​36. 4 Höpfl, ‘Power, Authority and Legitimacy’, 219–​22. See also Mommsen, Römisches Staatsrecht, p. 1034 (‘In diesem Sinne ist auctoritas mehr als ein Rathschlag und weniger als ein Befehl, ein Rathschlag, dessen Befolgung man sich nicht füglich entziehen kann, wie ihn der Fachgelehrte dem Laien, der Führer im Parlament seinen Anhängern ertheilt’). 5 Höpfl, ‘Power, Authority and Legitimacy’, 219–​22. 6 Ibid, 220.

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_003

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27

assigned.7 Potentia termed the resources to induce compliance for the advice of auctoritas or the command of potestas.8 Over time, the terms potestas and auctoritas became indistinguishable.9 (Legitimate political) authority10 became the designation of legitimate power of the monarch in a state.11 In this form, the concept of authority is not applicable to international law –​which is decentralised –​let alone to non-​state actors.12 Therefore, since the 1990s, the concept of authority has been redefined in studies of international relations and also in international legal scholarship in order to describe the role of non-​state actors in international law.13 Yet, various authors have defined and used the concept of authority in different

7 8 9 10

11 12

13

Ibid, 223–​5. Ibid, 225–​6. Ibid, pp. 225–​7 (pointing out that, conceptually, auctoritas and potestas were closely linked since auctoritas could be used as a ‘resource’ to secure compliance with a command of potestas). For the concept of legitimate political authority, see e.g. F. Peter, ‘Authority and Legitimacy’, in G. F. Gaus and F. D’Agostino (eds.), The Routledge Companion to Social and Political Philosophy (Routledge, 2013), p. 596; Stanford Encyclopedia of Philosophy, ‘Authority’, 11 January 2012; A. Brudner, ‘The Evolution of Authority’, in H. P. Olsen and P. Capps (eds.), Legal authority beyond the state (cup, 2018), pp. 28–​33; S. Turner and G. McCreery, ‘Authority and Legitimacy’, in G. Ritzer (ed.), The Blackwell Encyclopedia of Sociology (Wiley, 2007), p. 1. Höpfl, ‘Power, Authority and Legitimacy’, 225–​7. Stanford Encyclopedia of Philosophy, ‘Authority’; Peter, ‘Authority and Legitimacy’, pp. 604–​5; B. Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20(1) ejil 23–​57 at 27 (‘The exercise of power beyond the state is fundamentally different from exercise of power by the state and its agencies within the national legal and political order’); Collins, ‘Consent, Obligation and the Legitimate Authority of International Law’, p. 210 (‘This view of political authority prompts a number of questions, not least of which is the question of the cogency of this understanding of authority when applied to the seemingly non-​hierarchical political context of international relations’). Note that international law itself does not provide a definition of the concept of authority, although it is used, for example, in Article 42 and 43 Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. Before, in international legal scholarship, the authority of international law was subject of discussion, which was commonly equated with international law’s normativity, rather than the authority of actors, cf. e.g. G. G. Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’ (1956) 19(1) Modern Law Review 1–​ 13. For new approaches to the authority of international law, see S. Besson, ‘The Authority of International Law: Lifting the State Veil’ (2009) 31(3) Sydney Law Review 343–​80; B. Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (oup, 2015). See also Collins, ‘Consent, Obligation and the Legitimate Authority of International Law’, p. 206.

28 

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ways for different objectives.14 The different conceptions of authority diverge along essential aspects, such as the origin of authority and the relation to legal bindingness.15 For instance, some conceptions of authority –​such as the international court authority approach by Karen Alter, Laurence Helfer and Mikael Rask Madsen –​are tailored to specific actors and include the specificities of these actors for the conception of authority.16 Other conceptions determine authority against an ideal type of an institution.17 Most prominently in international legal scholarship, the international public authority approach by Armin von Bogdandy, Philipp Dann and Matthias Goldmann presupposes that an international institution is created by states and provided with a competence to further public interests.18 Applying these concepts of authority to the icrc would entail several shortcomings and require modifications. This chapter attempts to investigate the icrc’s authority to say what international law is, i.e. its ‘authority to determine the content of international law on a particular point and state where international law stands on that point’.19 For this purpose, the chapter applies two basic concepts of authority; namely the concept of competence, which is incorporated in several more specific authority conceptions,20 and the concept of de facto authority, which recently has found some popularity in international legal scholarship21 and was already 14

15 16 17 18 19 20 21

For an overview see B. Peters and J. K. Schaffer, ‘The Turn to Authority beyond States’ (2013) 4(3) Transnational Legal Theory 315–​35 at 320–​35; K. J. Alter, L. R. Helfer and Mikael R Madsen, ‘International Court Authority in a Complex World’, in K. J. Alter, L. R. Helfer and M. R. Madsen (eds.), International Court Authority (oup, 2018), pp. 5–​12; P.-​O. Busch and A. Liese, ‘The Authority of International Public Administrations’, in M. W. Bauer, C. Knill and S. Eckhard (eds.), International bureaucracy (Palgrave Macmillan, 2017). Peters and Schaffer, ‘The Turn to Authority beyond States’, pp. 320–​21. K. J. Alter, L. R. Helfer and M. R. Madsen (eds.), International Court Authority (oup, 2018). For a discussion of normative conceptions, see Peters and Schaffer, ‘The Turn to Authority beyond States’, pp. 323–​4. Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law’, 1383; I. Venzke, ‘International Courts’ De Facto Authority and its Justification’, in K. J. Alter, L. R. Helfer and M. R. Madsen (eds.), International Court Authority (oup, 2018), pp. 392–​8. F. Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’ (2018) 9(2) Journal of International Dispute Settlement 291–​314 at 293–​4 (describing authority as ‘a mode of regulating behaviour’). See e.g. M. Zürn, M. Binder and M. Ecker-​Ehrhardt, ‘International authority and its politicization’ (2012) 4(1) International Theory 69–​106. For further discussion, see Peters and Schaffer, ‘The Turn to Authority beyond States’, pp. 320–​35. See e.g. Nico Krisch, ‘Liquid authority in global governance’ (2017) 9(2) International Theory 237–​60; Zarbiyev, ‘Saying Credibly What the Law Is’. For the categorisation between de lege authority and de facto authority, cf. Friedman, ‘On the Concept of Authority’

The Authority of the icrc

29

applied to the icrc’s Customary ihl Study by Marco Milanovic and Sandesh Sivakumaran.22 Competence is a legal concept.23 It provides a legal status that entitles actors to make decisions that others have to follow. A belief is irrelevant since a decision cannot make something true, but only obligatory. Competence does not build on common opinion, but on common commitment.24 For international law, its creation is regulated by the international legal system.25 As such it is founded in state consent.26 With regard to interpretations and law-​ ascertainment, competence may be conferred ‘to establish a specific meaning of the law as binding.’27 Such a competence can be delegated explicitly –​for instance through a comprehensively mandating treaty rule28 –​but also as a result of less unambiguous assignments.29 Thus, for competence, the system of authority is prior to the actor, while for de facto authority the actor is prior to the system.30 Competence is prospective and not retrospective. Since the concept of competence is subject to (explicit or implicit) regulation, those who possess the power ab initio, i.e. states, may decide whether to include or exclude other actors. De facto authority (or ‘extra-​legal authority’) is a descriptive term, not a legal concept. It comprises ‘the ability of one actor to use institutional and discursive resources to induce deference from others’.31 The emphasis on

22 23 24 25 26 27

28 29

30 31

(using the categorisations of ‘an authority’ and ‘in authority’); Busch and Andrea Liese, ‘The Authority of International Public Administrations’, pp. 99, 108. Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’. Zarbiyev, ‘Saying Credibly What the Law Is’, 312–​3. Friedman, ‘On the Concept of Authority’, p. 81; M. Weber, The Theory of Social and Economic Organization (The Free Press and Collier-​MacMillan, 1965), pp. 328–​36. d’Aspremont, ‘International Law-​Making by Non-​State Actors’, pp. 174–​5. I. Venzke, ‘Between Power and Persuasion: On International Institutions’ Authority in Making Law’ (2013) 4(3) Transnational Legal Theory 354–​73 at 359. I.Venzke, ‘Authoritative Interpretation’, Max Planck Encyclopedia of International Procedural Law, April 2018, para. 3. See also U. Fastenrath, Lücken im Völkerrecht: Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (Duncker & Humblot, 1991), p. 195. See e.g. Article xxix of the Articles of Agreement of the International Monetary Fund and Article 1131 North American Free Trade Agreement. For a discussion of an implicit conferral of interpretative authority by the Charter of the United Nations, see Venzke, ‘Authoritative Interpretation’, paras. 33–​41. Cf. also Venzke, How interpretation makes international law, pp. 63–​4; Sivakumaran, ‘Beyond States and Non-​State Actors’. Friedman, ‘On the Concept of Authority’, p. 81. M. N. Barnett and M. Finnemore, Rules for the World: International Organizations in Global Politics (Cornell University Press, 2004), p. 5. See also D. D. Avant, M. Finnemore and S. K.

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deference indicates a certain content-​independence as well as a certain degree of freedom not to follow the authority.32 Therefore, de facto authority is based neither on persuasion nor on coercion, but on a belief.33 If someone is said to be ‘an authority’ on something, his views and the rightness of his claims are entitled to be believed.34 According to John Finnis, [a]‌person treats something … as authoritative if and only if he treats it as giving him sufficient reason for believing or acting in accordance with it notwithstanding that he himself cannot otherwise see good reason for so believing or acting, or cannot evaluate the reasons he can see, or sees some countervailing reasons(s), or would himself otherwise … have preferred not so to believe or act.35 The rightness of a claim is entitled to be believed due to its recognition within a certain community. The recognition by some actors can have more weight than the recognition by others.36 The participants in the community are expected to follow –​or at least to consider –​what an actor, whose views are regarded as authoritative, says. In other words, there are ‘compelling social pressures’ to do so.37 Consequently, de facto authority is based on a preceding recognition of

32 33

34 35 36 37

Sell, ‘Who governs the globe?’, in D. D. Avant, M. Finnemore and S. K. Sell (eds.), Who Governs the Globe? (cup, 2010), p. 9. Krisch, ‘Liquid authority’, 242. Friedman, ‘On the Concept of Authority’, p. 69; Venzke, ‘Between Power and Persuasion’, 361–​2; Jansen, The making of legal authority, pp. 106–​7; Zürn, Binder and Ecker-​Ehrhardt, ‘International authority and its politicization’, 86. See also H. Arendt, On Violence (Houghton Mifflin Harcourt and Penguin Press 1970), p. 45 (‘[The] hallmark [of Authority] is unquestioning recognition by those who are asked to obey; neither coercion nor persuasion is needed. (A father can lose his authority either by beating his child or by starting to argue with him, that is, either by behaving to him like a tyrant or by treating him as an equal)’). Friedman, ‘On the Concept of Authority’, p. 81; Zarbiyev, ‘Saying Credibly What the Law Is’, 292–​7; S. M. Lukes, ‘Perspectives on Authority’, in J. Raz (ed.), Authority (New York University Press, 1990), p. 209. J. M. Finnis, ‘Authority’, in J. Raz (ed.), Authority (New York University Press, 1990), p. 176. See also H. Arendt, Between Past and Future: Eight Exercises in Political Thought (Penguin Press, 1977), pp. 94–​5. Sivakumaran, ‘Beyond States and Non-​State Actors’, 386–​7; Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 527. Venzke, ‘Between Power and Persuasion’, 368 (‘Participants in legal discourse can hardly escape these reference points because they are expected to relate to them. When they do not relate to them they incur costs or forgo benefits’).

The Authority of the icrc

31

an actor by the community,38 which presupposes some mutually recognised normative criteria as ‘deference-​entitling properties’.39 These criteria constitute the ‘marks of authority’.40 The identification of the marks of authority of an actor are informative about the actor’s role in international law. They allow one to conceive of authority as dynamic and to categorise it in degrees.41 So far, marks of authority have been identified for certain actors. The most notable mark of authority is expertise.42 Generally, expertise has a considerable impact on authority if problems are complex or if the knowledge is unique.43 In legal practice and academia, the expertise underlying the works relied on is often explicitly mentioned.44 In addition, authorship45 and the reputation of the author’s institution46 may form other marks of authority. Furthermore, the form,47 the process48 and the methodology49 used by actors have been 38

Ibid, pp. 361–​2; Friedman, ‘On the Concept of Authority’, p. 69; Krisch, ‘Liquid authority’, 242. 39 Zarbiyev, ‘Saying Credibly What the Law Is’, 298 (‘If what matters in an authority relation is “who is speaking” but not what is said, how can one determine whether the person who is speaking has authority? The answer lies in the “marks” of authority that a person must possess to be able to claim authority’). See also E. Shils, Constitution of Society (Chicago University Press, 1982), p. 144. 40 Friedman, ‘On the Concept of Authority’, pp. 70–​1 (‘The “mark” of authority may … be understood as the criteria that men do in fact accept as designating who is to have authority, that is, whose judgment is to be deferred to’). 41 Ibid. 42 Zarbiyev, ‘Saying Credibly What the Law Is’, 301–​5; Sivakumaran, ‘Beyond States and Non-​ State Actors’, 369–​70; M. Zürn, A theory of global governance: Authority, legitimacy, and contestation (oup, 2018), pp. 46–​7. 43 On the complexity, see Venzke, How interpretation makes international law, p. 86 referring to P. M. Haas, ‘Introduction: epistemic communities and international policy coordination’ (1992) 46(1) International Organization 1–​35 at 12. On the uniqueness of expert knowledge, see Friedman, ‘On the Concept of Authority’, pp. 75–​76. 44 See e.g. icj, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, icj Rep 2012, p. 10, para. 39. 45 Zarbiyev, ‘Saying Credibly What the Law Is’, 307–​8; Jansen, The making of legal authority, pp. 99–​100. 46 J. d’Aspremont, ‘Wording in International Law’ (2012) 25(3) ljil 575–​602 at 582. 47 Jansen, The making of legal authority, pp. 99–​100; Sivakumaran, ‘Beyond States and Non-​ State Actors’, 370. 48 Zarbiyev, ‘Saying Credibly What the Law Is’, 300–​ 1; Venzke, ‘Between Power and Persuasion’, 363–​4; Jansen, The making of legal authority, p. 9. 49 Cf. T. M. Franck, The Power of Legitimacy among Nations (oup, 1990), pp. 183–​94. With regard to human rights expert treaty bodies, see H. Keller and L. Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies (cup, 2012), p. 167; G. Ulfstein, ‘Law-​making by human rights

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identified as substantial marks of authority. They relate to professional excellence and the identity of the legal profession.50 Finally, tradition is identified as a mark of authority.51 Previous constant consideration of an actor’s view may generate confidence and cause the expectation to take the actor’s views as a matter of course.52 For the most part, it is nearly impossible to trace authority back to only one mark. It is the interplay and combination of marks of authority that builds the authority.53 Both types of authority, competence and de facto authority, are not mutually exclusive. Rather, they can affect each other. Nevertheless, there is no implicit connection.54 Competence may involve questions of legitimacy.55 The criteria for legitimacy of competence can, to some extent, overlap with the marks of de facto authority.56 The possession of competence can contribute to de facto authority.57 Furthermore, de facto authority can be distributed by law or it can be transformed to competence, if the law provides so –​for instance, this is conceivable in customary international law or the principle of effectiveness.58 Generally, the concept of de facto authority is broader than the concept of competence as it includes various sources of recognition that are not built on formal empowerment.59

50

51 52 53 54

55 56 57 58 59

treaty bodies’, in R. Liivoja and J. Petman (eds.), International Law-​making (Routledge, 2014), p. 257. Cf. Jansen, The making of legal authority, pp. 97 and 140–​ 1; Venzke, ‘Sources in Interpretation Theories’, pp. 418–​9; J. d’Aspremont, Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation (Edward Elgar Publishing, 2015), pp. 9–​15 (referring to the socialisation of international lawyers). Venzke, ‘Between Power and Persuasion’, 367; Jansen, The making of legal authority, p. 9. Cf. Venzke, How interpretation makes international law, pp. 63–​4. Zarbiyev, ‘Saying Credibly What the Law Is’, 309–​11. Friedman, ‘On the Concept of Authority’, pp. 61–​2 (‘de facto authority is not identical with authority in the de jure sense, nor is it even necessarily the consequence of the recognition of that authority. Thus, a man may receive deference from others because they recognize and respect his legal right to govern or instead because of his “personal” qualities’). Venzke, How interpretation makes international law, p. 224. For this reason, is it pointless to inquiry the legitimacy of de facto authority, see Zarbiyev, ‘Saying Credibly What the Law Is’, 309–​11; Peter, ‘Authority and Legitimacy’, pp. 596–​7. Also collaborations with institutions possessing a competence may increase de facto authority, S. E. Goddard, ‘Brokering change: networks and entrepreneurs in international politics’ (2009) 1(2) International Theory 249–​81. Venzke, ‘Authoritative Interpretation’, para. 66. For a definition of the principle of effectiveness, see H. Krieger, Das Effektivitätsprinzip im Völkerrecht (Duncker & Humblot, 2000), p. 80. Krisch, ‘Liquid authority’, 244.

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This chapter answers the question of whether the icrc possesses a competence to interpret and ascertain ihl. Subsequently, it examines the icrc’s de facto authority. 2

Does the icrc Possess a Competence to Interpret and Ascertain International Humanitarian Law?

The prerequisite for the icrc’s competence to interpret and ascertain ihl is that international law confers such competence on it. Common descriptions of the icrc as subject of international law sui generis,60 unique,61 atypical,62 quasi-​international organisation,63 or as a guardian and promoter of ihl64 are therefore not the subject of this chapter. These descriptions, especially on the attribution of legal personality to the icrc, are often used to argue that the icrc plays a legal role in the making of ihl.65 This is demonstrated in the International Law Commission’s discussions on 60

61 62 63 64 65

This description is frequently used in international law textbooks when the icrc’s role in ihl is introduced, however without detailed explanation on the categorisation or its significance, see e.g. N. Melzer, International Humanitarian Law: A Comprehensive Introduction (icrc, 2016), p. 314; Herdegen, Völkerrecht, p. 74; Sassòli, International Humanitarian Law, para. 5.166. The same observation can be made for other formats of academic writings dealing with the icrc, see e.g. Maresca and Lavoyer, ‘The Role of the icrc in the Development of International Humanitarian Law’, 508; M. Wood, ‘International Organizations and Customary International Law: 2014 Jonathan J. Charney Distinguished Lecture in Public International Law’ (2015) 48(3) Vanderbilt Journal of Transnational Law 609–​20 at 617; S. Hobe, ‘Non-​Governmental Organizations’, mpepil, June 2019, para. 58. For a more detailed discussion of the icrc’s status as subject of international law sui generis and its legal personality, see e.g. C. Dominicé, ‘La personnalité juridique internationale du cicr’, in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​Rouge (Martinus Nijhoff Publishers, 1984), pp. 667–​72; P. Reuter, ‘La personnalité juridique internationale du Comité international de la Croiy-​Rouge’, in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​Rouge (Martinus Nijhoff Publishers, 1984). E. Crawford and A. Pert, International Humanitarian Law (cup, 2015), pp. 241–​2. Debuf, ‘Tools to do the job’, 321. Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 245–​6. Thürer, International Humanitarian Law, pp. 55–​6; icrc, Commentary on the First Geneva Convention, para. 8. See e.g. C. Shucksmith, The International Committee of the Red Cross and its Mandate to Protect and Assist: Law and Practice (Hart Publishing, 2017), pp. 19–​56. For criticism of this reasoning, see Linus Mührel, ‘Christy Shucksmith: The International Committee of the Red Cross and its Mandate to Protect and Assist –​Law and Practice’ (2018) 56(3) Archiv des Völkerrechts 386–​9.

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subsequent practice in relation to interpretation of treaties or the identification of customary international law demonstrate.66 However, regardless of their accuracy, these descriptions have no a priori significance as such for the question of whether international law confers a competence to the icrc.67 The description as a guardian or promoter of ihl is not a legal one.68 The legal influence of an international organisation on international law depends on the organisation’s mandate given to it by its members.69 Further, the international legal personality of non-​state actors follows the attribution of rights and duties but does not precede them.70 66

67

68 69 70

See e.g. ilc, Summary record of the 3151st meeting, UN Doc a/​c n.4/​3151 (27 July 2012), (2012) unybilc Vol. i, p. 162, and ilc, Summary record of the 3184th meeting, UN Doc a/​c n.4/​3184 (23 July 2013), (2013) unybilc Vol. i, p. 98 (statements by Ms. Escobar Hernández); ilc, Provisional summary record of the 3254th meeting, UN Doc a/​c n.4/​ sr.3254 (10 May 2016) pp. 3–​4 (statement by Ms. Jacobsson); ilc, Provisional summary record of the 3443rd meeting, UN Doc a/​c n.4/​s r.3443 (24 September 2018) p. 10 (statement by Mr. Jalloh); ilc, Summary record of the 3162nd meeting, UN Doc a/​c n.4/​3162 (10 May 2013), (2013) unybilc Vol. i, p. 11 (statement by Mr. Sturma); ilc, Provisional summary record of the 3227th meeting, UN Doc a/​c n.4/​ sr.3227 (29 October 2014) p. 3 (statement by Mr. Gómez-​Robledo). See also the Netherlands, ilc Draft Conclusions on Identification of Customary International Law: Comments and Observations by the Kingdom of the Netherlands, 10. August 2018 accessed 31 August 2023, paras. 3–​4 (‘If it is the separate international legal personality of an international organization that determines whether that organization can play a role in the formation and identification of international law, it is unclear why this role should be limited to these two cases. The legal basis for such a limitation remains unclear. It suggests a view of international organizations as mere agents of States rather than as international actors in their own right, and calls into question the idea of international legal personality of such organizations’). Cf. J. Klabbers, ‘(I Can’t Get No) Recognition: Subjects Doctrine and Emergence of Non-​ State Actors’, in J. Petman, J. Klabbers and M. Koskenniemi (eds.), Nordic Cosmopolitanism (Martinus Nijhoff Publishers, 2003), pp. 367–​8. Nevertheless, these descriptions are relevant for the interpretations’ and law-​ascertainments’ de facto authority, see in this chapter, at 3. This description can neither be found in the Geneva Conventions, the Additional Protocols or the Statutes of the Movement, nor is it consistently used by states in relation to the icrc’s role for the interpretation or ascertainment of ihl. E.g. regarding the relevance of international organisations for the formation of customary law, see unga, Report of the International Law Commission (2018), p. 131. d’Aspremont, ‘International Law-​ Making by Non-​ State Actors’, p. 172; d’Aspremont, Epistemic Forces in International Law, pp. 121–​6; T. Gazzini, ‘A unique non-​State actor: The International Committee of the Red Cross’ (2010) 4 Human Rights and International Legal Discourse 32–​46 at 38–​9 (stating that the attribution of legal personality to the icrc is based on a circular argument reminiscent of the reasoning of the International Court of Justice in icj, Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, icj Rep 1949, p. 174, in which the Court held at p. 179 that the United Nations

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However, where relevant, this section takes into account the individual aspects that form the primary basis for the descriptions of the icrc as subject of international law sui generis, unique, atypical or quasi-​international organisation, or guardian or promoter of ihl. In particular, it examines the icrc’s role under the Geneva Conventions and Additional Protocols, as well as under the Statutes of the Red Cross and Red Crescent Movement. Can a competence of the icrc to interpret and ascertain ihl be derived from these instruments? The icrc’s Role under the Geneva Conventions and Additional Protocols It is a widely held opinion that the Geneva Conventions and the Additional Protocols confer certain functions,71 competences,72 or mandates73 on the icrc. Usually, this opinion only refers to humanitarian aid or the icrc’s possible role as a substitute protecting power; and not to the icrc’s interpretations or law-​ascertainments. While the first editions of the icrc Commentaries do not link their interpretations to the icrc’s role under the Geneva Conventions and the Additional Protocols in any way,74 the second editions refer to the icrc as guardian and promoter of ihl, also retrospectively with regard to the first editions.75 This role as guardian and promoter of ihl is typically related to the icrc’s role

2.1

71 72 73 74

75

was a subject of international law entitled to bring an international claim since it ‘was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane’). See in this context also A. Bianchi, ‘Introduction: Relativizing the Subjects or Subjectivizing the Actors: Is That the Question?’, in A. Bianchi (ed.), Non-​State Actors and International Law (Taylor and Francis, 2009), pp. xi–​x xx. See e.g. unga, Report of the International Law Commission (2018), p. 132 (fn. 698). See e.g. V. Epping and H.-​J. Heintze, ‘Völkerrechtssubjekte’, in K. Ipsen (ed.), Völkerrecht, 6th edn. (c.h. Beck, 2014), pp. 380–​1. See e.g. M. Sassòli, A. A. Bouvier and A. Quintin, How Does Law Protect in War? Part i: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (icrc, 2014), Chapter 15, p. 3. Pictet, Commentary gc i, p. 9 (only stating that ‘[t]‌he Red Cross derives authority from the Conventions for only a part of its work; and the Conventions deal with many obligations between States which do not directly concern the Red Cross, although they do apply to persons in whom it is interested.’ Read in context, this statement clearly relates to the icrc’s work in the field only). icrc, Commentary on the First Geneva Convention, para. 8; P. Maurer, ‘Foreword’, in icrc (ed.), Commentary on the First Geneva Convention (cup, 2016) (remaining ambigu­ ous when stating that ‘it is part of the icrc’s role and mandate to work towards a common understanding of international humanitarian law’).

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under the Geneva Conventions and the Additional Protocols.76 Thus, an implicit connection to the icrc’s role under these treaties is deliberately established. Even though the new Commentaries remain silent on the legal significance of this role for the interpretations, an academic contribution by Jean-​ Marie Henckaerts (head of the icrc project for updating the Commentaries) and Elvina Pothelet indicate that the icrc probably aims to invoke this idea. Henckaerts and Pothelet argue that the icrc’s practice possesses legal significance because of a mandate given to the icrc by states under the Geneva Conventions.77 Yet, they neither explain which precise rules this mandate is based on, nor do they specify the exact scope of this mandate. Indeed, in a few rules, especially with regard to humanitarian aid and the substitution of protecting power, the Geneva Conventions and the Additional Protocols make reference to the icrc.78 However, the wording, the context and the purpose of the respective rules do not suggest that the icrc’s practice is granted any legal significance by the state parties, not to mention a competence to interpret or ascertain rules of ihl.79 In many of those rules, the icrc is only mentioned as an example of a humanitarian organisation that could assume the respective function. Statements made during the Diplomatic Conference to the Geneva Conventions imply that mentioning the icrc in those treaties had no legal reason, but was due to the icrc’s role in the Second World War, its experience in the field and its devotion to humanitarian aid.80 In other words, mentioning the icrc was just a recognition of its factual importance 76 77 78 79

80

See e.g. J.-​P. Lavoyer, ‘International Humanitarian Law: Should It Be Reaffirmed, Clarified, or Developed?’ (2006) 80 ils 287–​309 at 287; Melzer, International Humanitarian Law, pp. 323–​30. J.-​M. Henckaerts and E. Pothelet, ‘The interpretation of ihl treaties: subsequent practice and other salient issues’, in H. Krieger and J. Püschmann (eds.), Law-​Making and Legitimacy in International Humanitarian Law (Edward Elgar Publishing, 2021), p. 167. Articles 3, 9, 10, 11, 23 gc i; Articles 3, 9, 10, 11 gc ii; Articles 3, 9, 10, 11, 56, 72, 73, 75, 79, 81, 123, 125, 126 gc iii; Articles 3, 10, 11, 12, 14, 30, 59, 61, 76, 96, 102, 104, 108, 109, 111, 140, 142, 143 gc iv; Articles 5, 6, 33, 78, 81, 97, 98 ap i; Articles 24 ap ii. In general, the Geneva Conventions and Additional Protocols do not deal with interpretation. Only Additional Protocol i in its Article 7 calls for meetings of the state parties when general problems concerning the application of the Conventions and Protocols arise. Other treaties provide for specific rules on interpretation and in this regard confer competences to treaty bodies, see e.g. General Agreement on Tariffs and Trade 1994, Article ix (2) (‘The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements’). C. Barrat, Status of ngo s in International Humanitarian Law (brill, 2014), pp. 65–​9 citing a French delegate in Final Record, Joint Committee, vol. ii-​b , P. 22 (stating that ‘the icrc does not act by virtue of a mandate but according to moral laws, which go far beyond all mandates’).

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for humanitarian aid in times of armed conflict. Conversely, some legal scholars, and especially the icrc itself, argue that certain rules grant the icrc a mandate including rights vis-​à-​vis state parties81 –​a position that is controversial.82 However, none of these interpretations refers to the legal significance of the icrc’s (interpreting and law-​ascertaining) practice. In sum, there is no evidence that the Geneva Conventions and Additional Protocols grant the icrc any competence to interpret or ascertain rules of ihl. The icrc’s Role under the Statutes of the Red Cross and Red Crescent Movement Neither the Pictet Commentaries nor the ap Commentary make any reference to the icrc’s role in the Statutes of the Movement for the value of their interpretations.83 In contrast, the new Commentaries’ introduction links the icrc Commentaries, including the first editions, to the icrc’s role under the Statutes of the Movement.84 The same can be observed for the introduction to the Guidance85 and the Study’s introduction86 and forewords.87 Moreover, the Study makes reference to the icrc’s role under the Statutes to argue that the 2.2

81

See e.g. the interpretation of Article 9 in icrc, Commentary on the First Geneva Convention, paras. 779–​84 and 1120–​6 or the interpretation of Article 5 (3) ap i in Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 200. 82 See e.g. Gazzini, ‘A unique non-​State actor’, pp. 39–​42; G. Barile, ‘Caractère du Comité international de la Croix-​Rouge’ (1979) 62 Rivista di Diritto Internazionale 111–​5 at. 115; C. Focarelli, International Law (Edward Elgar Publishing, 2019), p. 91. Cf. also F. Kalshoven, ‘Impartiality and neutrality in humanitarian law and practice’ (1989) 29(273) irrc 516–​35 at 528–​9. 83 The ap Commentary only refers to Article 6 of the Statutes from 1952 in the interpretation to Article 81 (1) and Article 83 (1) ap i with regard to the icrc’s role for the protection and assistance to the victims of conflicts and the dissemination of ihl, see Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, paras. 3311, 3379. 84 icrc, Commentary on the First Geneva Convention, para. 8. See also Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’ (2012) 94(888) irrc 1551–​5 at 1552. 85 Melzer, Interpretive Guidance, p. 9. See also N. Melzer, ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the icrc’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42(3) jilp 831–​916 at 893–​4. 86 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxxii–​x xxiii. 87 J. Kellenberger, ‘Foreword’, in J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law (cup, 2005), p. xvi; Y. Sandoz, ‘Foreword’, in J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law (cup, 2005), p. xx.

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icrc’s practice is relevant for the formation of customary international law.88 Legal scholars also frequently refer to the icrc’s role under the Statutes of the Movement when giving special weight to the icrc’s interpretations and law-​ ascertainments or, more generally, when emphasising the icrc’s significance for ihl.89 The Statutes of the Movement describe the icrc’s role in Article 5. Both the icrc and legal scholars particularly refer to Article 5 (2) (c), (g) and (h), which read as follows:





The role of the International Committee, in accordance with its Statutes, is in particular … c) to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law; … g) to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof; h) to carry out mandates entrusted to it by the International Conference.

In the context of the icrc’s significance for the making of ihl, including its interpretations and law-​ascertainments, these provisions are often presented as giving the icrc an official mandate by the International Conference of the

88 89

Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xli. See also J.-​M. Henckaerts, ‘Customary International Humanitarian Law: A Response to US Comments’ (2007) 89(866) irrc 473–​88 at 478. E.g. S. Sivakumaran, ‘The Influence of Teachings of Publicists on the Development of International Law’ (2017) 66(1) iclq 1–​37 at 6; K. Thynne, ‘The Role of the International Committee of the Red Cross’, in R. Liivoja and T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (Taylor and Francis, 2016), pp. 486–​8. See also Geiss and Zimmermann, ‘The International Committee of the Red Cross’, p. 23 (although not deriving any legal significance of the icrc’s role in the Statutes of the Movement, stating that ‘[t]‌he icrc’s role in the process of humanitarian norm development was officially and specifically recognized and approved by States by way of recognition in the Statutes of the Red Cross and Red Crescent Movement’); E. Benvenisti and A. Cohen, ‘War is Governance: Explaining the Logic of the Laws of War From a Principal-​Agent Perspective’ (2014) 112(8) Michigan Law Review 1363–​415 at 1371 (fn. 24) (stating that ‘one of the icrc’s major tasks is codifying and creating a shared interpretation of ihl’ for evidence of which they refer to the ap Commentary and the Study); Sassòli, Bouvier and Quintin, How Does Law Protect in War?, Chapter 15, p. 3.

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Red Cross and Red Crescent,90 which includes all state parties to the Geneva Conventions.91 It is questionable, however, whether Article 5 (2) Statutes of the Movement gives the icrc a mandate in the sense of conferring a competence for the interpretation and ascertainment of ihl; or whether it is merely a factual description of the icrc’s role in the context of political will to acknowledge the importance of the icrc’s work. In principle, international law does not prohibit the icrc, like any other actor, from interpreting and ascertaining ihl.92 A conferment of competence would only be required if the icrc’s interpretations and law-​ascertainments, or any other practice of the icrc, should obtain legal relevance towards subjects of international law –​especially states since they are primarily affected by international law. This presupposes, however, a legal intent on the part of the states to commit themselves to taking the icrc’s interpretations and law-​ascertainments into account. Otherwise, from a positive international law perspective, the icrc’s interpretations and law-​ascertainments would play the same role as the interpretations and law-​ ascertainments of legal scholars. The Statutes of the Movement are not a treaty in the meaning of the vclt.93 They are a resolution of the International Conference of the Red Cross and Red Crescent, adopted not only by states, but also by the components of the Red Cross and Red Crescent Movement,94 i.e. non-​state actors. This does not per se exclude a legal binding of states. The Statutes of the Movement may have a binding effect since states are principally free in the choice of the form to express their intent to an international legal obligation.95 However, a binding of states to the Statutes as such cannot be explained by the wording of the Statutes or by their genesis or by the Rules of Procedure of the International Red Cross and Red Crescent Movement96 governing the International Conference. 90 91 92 93 94 95 96

E.g. Sivakumaran, ‘Beyond States and Non-​State Actors’, 362–​3; Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 223–​4; Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, p. xxxii. Article 9 (1) Statutes of the Movement. Petrov, Expert Laws of Wars, p. 60 (with further references). Cf. Article 2 (1) (a) vclt. These include the icrc, the National Red Cross and Red Crescent Societies, as well as the International Federation of the Red Cross and Red Crescent Societies, see Article 1 (1) Statutes of the Movement. E.g. for the binding of unilateral acts, see V. R. Cedeño and M. I. T. Cazorla, ‘Unilateral Acts of States in International Law’, mpepil, January 2019. Cf. also Article 3 (a) vclt. Rules of Procedure 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.

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2.2.1 Wording According to their wording, only individual rules of the Statutes –​for instance on the amendment or entry into force of the Statutes –​are binding on the states participating in the International Conference.97 The wording of Article 5 (2) Statutes of the Movement does not imply that it binds states. On the contrary, the introductory words to Article 5 (2) (‘The role of the International Committee’) indicate that this provision only describes the factual role of the icrc within the Red Cross and Red Crescent Movement, especially when seen together with the context.98 Lit. c only refers to the ‘tasks’ of the icrc under the Geneva Conventions, which, as explained above,99 do not confer a competence on the icrc to interpret these treaties. The icrc argues that ‘[i]‌n many cases, the icrc cannot fulfil these tasks without interpreting the basic treaties of humanitarian law underlying the icrc’s mandate.’100 However, a mere need for interpretations to fulfil the tasks under the Geneva Conventions does not constitute a competence to do so if the necessary intent by states is not proven. The wording in lit. g is more open towards the icrc’s interpretations and law-​ascertainments, which, in principle, promote both the understanding and dissemination of ihl and may contribute to its development. Yet, ‘to work for the understanding and dissemination of knowledge of international humanitarian law’ does not involve any legal obligation towards this work on the part of the states; ‘to prepare’ implies that the development still depends on the decision of states. This understanding reflects the icrc’s many years of practice in the development of ihl, which focussed on the preparation of new treaties and is typically related to lit. g.101 When the icrc prepared treaties in

97

Cf. Article 20 and 21 Statutes of the Movement. Moreover, the International Conference cannot adopt binding decisions except for questions which address the Statutes or the procedure of the International Conference, cf. Article 10 (3) (a), (5) Statutes of the Movement. See also H.-​P. Gasser, ‘International Committee of the Red Cross (icrc)’, mpepil, June 2016, para. 18. 98 The adjacent provisions describe the roles of the other components of the Movement. The whole Section ii (‘Components of the Movement’) in particular deals with the relationship of the components to each other and end with a provision on the cooperation within the Movement (Article 7). 99 See in this Chapter, at 2.1. 100 E.g. icrc, Commentary on the First Geneva Convention, para. 8; Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’, 1552. 101 See e.g. Maresca and Lavoyer, ‘The Role of the icrc in the Development of International Humanitarian Law’, 505–​6; W. H. Parks, ‘Part ix of the icrc “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42(3) jilp 769–​830 at 796.

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the past, the legal force of these treaties still depended on the consent of the state parties.102 With regard to lit. h, the request by the 26th International Conference to the icrc to prepare a report on the status of customary ihl in 1995 is, in general, subsumed under this provision. Although the term ‘mandate’ (lat. ‘mandatum’ means ‘order’) is generally defined as an authorisation to do something or to act in a particular way on a public issue,103 this can be understood both in a legal and in a political way.104 In international law the term mandate was first introduced in the context of the administration of territories on behalf of the League of Nations.105 Beyond that, international law is silent on the meaning of the term. The context of Article 5 Statutes of the Movement, in particular the analysis of the wording of Article 5 (c) and (g) –​does not support the reading that under lit. h the icrc may be entrusted with a mandate that involves the binding of states participating in the International Conference to the outcome of the icrc’s work.106 Mandates given to the icrc by the International Conference in the past concerned humanitarian aid or the preparation of treaties,107 i.e. those functions that are nowadays described in Article 5 (c) and (g) Statutes of the Movement. Another argument against this reading is that resolutions of the International Conference can be adopted by a majority vote if no consensus is reached108 since such a reading could then lead to a binding of states to the outcome of the icrc’s work, even when voting against the mandating of the icrc.

1 02 Cf. Article 11 vclt. 103 Dictionary.com, ‘mandate’ < https://​www​.dic​tion​ary​.com​/bro​wse​/mand​ate> accessed 31 August 2023. 104 Ibid; Cambridge Dictionary, ‘mandate’ accessed 31 August 2023. 105 R. Gordon, ‘Mandates’, mpepil, February 2013, para. 1. 106 Cf. M. Hakimi, ‘Custom’s Method and Process: Lessons from Humanitarian Law’, in C. A. Bradley (ed.), Custom’s Future (cup, 2016), pp. 165–​6 (stating that any delegation of law-​ making authority to the icrc ‘was, at best, implicit and incomplete.’). 107 Cf. Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, paras. 3913, 4351 (referring to Resolution xxxiii (1934-​x vth International Conference of the Red Cross, Tokyo) renewing the mandate given to the icrc in 1930 under Resolution xxii on Activities of the Red Cross at sea and to prepare the revision of Hague Convention x relating to maritime warfare, or a resolution (1921-​Xth International Conference of the Red Cross, Geneva) relating to civil war which gave the icrc a mandate to intervene in a supporting role in relief matters). 108 Rule 19 (2) Rules of Procedure 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.

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2.2.2 Genesis The genesis of the Statutes reveals that this instrument primarily serves to establish the division of roles and the cooperation within the Movement.109 After the First World War, the icrc faced attempts by the League of the Red Cross Societies (since 1991, the Federation of the Red Cross and Red Crescent Societies), which was founded in 1919, to take over the icrc’s role.110 In this regard, even the abolition of the icrc was proposed.111 As a result, a vivid dialogue on the future coexistence between the icrc, the League and the national Red Cross Societies began.112 In 1928, the 13th International Red Cross Conference adopted the first Statutes, which had been negotiated by Max Huber (then president of the icrc) and Paul Draudt (vice-​president of the League of the Red Cross Societies) as a compromise settling the dispute about the distribution of roles within the Movement.113 The rules of the 1928 Statutes were composed against this background114 –​such as Article 7, which enshrined the role of the icrc within the Movement as follows: Il reste le gardien des principes de la Croix-​Rouge et continue à exercer toute activité humanitaire conformément aux conventions interna­ tionales, à ses attributions actuelles et aux mandats qui lui sont ou seront confiés par la Conferérence international. … En temps de paix, il continue à travailler à l’apaisement des maux envisages comme des consequences de la guerre.115

109 Cf. P. Abplanalp, ‘The International Conferences of the Red Cross as a factor for the development of international humanitarian law and the cohesion of the International Red Cross and Red Crescent Movement’ (1995) 35(308) irrc 520–​49 at 540. 110 D. Palmieri, ‘An institution standing the test of time? A review of 150 years of the history of the International Committee of the Red Cross’ (2012) 94(888) irrc 1273–​98 at 1280–​1; Forsythe, The Humanitarians, pp. 35–​8. 111 Palmieri, ‘An institution standing the test of time?’, pp. 1280–​ 1; Forsythe, The Humanitarians, pp. 35–​6. 112 A. Durand, ‘Origin and evolution of the Statutes of the International Red Cross’ (1983) 23(235) irrc 175–​208 at 181–​6. 113 Ibid, pp. 186–​7; F. Bugnion, The International Committee of the Red Cross and the Protection of War Victims (MacMillan 2003), p. 366; Abplanalp, ‘The International Conferences of the Red Cross’, 541. 114 See in particular Articles 1 and 9 Statuts de la Croix-​Rouge Internationale, adopted in 1928 as Resolution xviii by the 13th International Conference of the Red Cross in The Hague. 115 Statuts de la Croix-​Rouge Internationale, adopted in 1928 as Resolution xviii by the 13th International Conference of the Red Cross in The Hague.

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In 1952, the Statutes were revised. As main changes to the previous version, the new Statutes included a more explicit definition of the roles of the individual components of the Movement and rules for closer cooperation between them.116 Article 6 of the 1952 Statutes described the role of the icrc, inter alia, as follows:



4. It undertakes the tasks incumbent on it under the Geneva Conventions, works for the faithful application of these Conventions and takes cognizance of complaints regarding alleged breaches of the humanitarian Conventions. … 7. It works for the continual improvement and diffusion of the Geneva Conventions. 8. It accepts the mandates entrusted to it by the International Conference of the Red Cross.117

These new Statutes were drafted jointly by the icrc and the League, which in the preparatory process aimed to further define the functions of the different components of the Movement against each other, especially with regard to the field of relief.118 Many provisions relate to the cooperation between these components.119 Thus, the focus once again laid on the relationship between the components of the Movement and not on the conferment of competences by states to individual components of the Movement. Concerns on the part of the national Red Cross societies of the Union of Soviet Socialist Republics120 that the role assigned to the icrc in the revised Statutes would grant it the status of an international organisation were politically motivated and can be traced back to criticism of the icrc’s role in the Second World War.121 These concerns were rejected at the International 1 16 Abplanalp, ‘The International Conferences of the Red Cross’, 541. 117 Statutes of the International Red Cross, adopted in 1852 by the 18th Conference of the Red Cross in Toronto. 118 Durand, ‘Origin and evolution of the Statutes of the International Red Cross’, 194–​5; Abplanalp, ‘The International Conferences of the Red Cross’, 541. 119 See in particular Articles 2 (2) and 8 Statutes of the International Red Cross, adopted in 1852 by the 18th Conference of the Red Cross in Toronto. 120 See e.g. the statement by General n.v. Slavin of the Soviet Red Cross Society at the 28th International Conference of the Red Cross Movement in Toronto (1952), xviii international Red Cross Conference, Toronto, July-​August 1952: Proceedings, pp. 97–​8. 121 See ibid (‘… you will see that under paragraph 2 of this article the League is subordinated to the so-​called i.c.r.c., a non-​international organ which represents no one. The League is subordinated to this office which since World War ii has been helping those parties that perpetrate crimes against humanity and violate the international Conventions. It has been proved at this Conference that this Committee is not an impartial organ’).

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Conference by reference to the unchanged assignment of the roles in relation to the 1928 Statutes.122 In the revision of the Statutes in 1986, which are still in force today, the provisions on the roles of the components of the Movement remained nearly unchanged as compared to the 1952 Statutes. The revision primarily consisted of changing the name from ‘International Red Cross’ to ‘International Red Cross and Red Crescent’.123 Thus, today’s Statutes still present a distribution of functions between the individual components of the Movement and the emphasis on cooperation and amicable settlement of disagreements.124 The amendments of the Statutes in 1995125 and 2006126 did not modify the role of the icrc. 2.2.3

Approaches towards a Juridification of the icrc’s Role under the Statutes of the Red Cross and Red Crescent Movement In spite of the wording and the genesis of the Statutes, some legal scholars argue that the Statutes of the Movement comprise obligations for states and confer competences to the icrc. Based on the assumption that the International Conference of the Red Cross and Red Crescent Movement is an international organisation, François Bugnion argues that the constitutive instrument of an international organisation (here, the Statutes of the Movement) have two aspects: an agreement between the parties, and a constitutive aspect that provides the framework for the functioning of the organisation.127 According to Bugnion, the legal binding

122 See e.g. the statement by M. Pesmazoglu, Chairman of the Legal Subcommittee at the 28th International Conference of the Red Cross Movement in Toronto (1952), xviii international Red Cross Conference, Toronto, July-​August 1952: Proceedings, pp. 96–​7. 123 Abplanalp, ‘The International Conferences of the Red Cross’, 541. 124 See e.g. the preamble, Article 1 (2), Article 5 (4) (a), (5), Article 6 (4) (j), Article 7, Article 10 (1), (3) (b), Article 18 (2), (3), (4). 125 26th International Conference of the Red Cross and Red Crescent, Resolution 7: Amendment to the Statutes and Rules of Procedure of the International Red Cross and Red Crescent, Geneva, 3–​ 7 December 1995 accessed 31 August 2023. 126 29th International Conference of the Red Cross and Red Crescent, Resolution 1: Proposed amendments to the statutes of the International Red Cross and Red Crescent Movement, Geneva, 20–​21 June 2006 accessed 31 August 2023. 127 Bugnion examines the competence of the icrc for interpretation in analogy to the competences of international organisations, see Bugnion, The International Committee of the Red Cross, pp. 916–​9. See also F. Bugnion, ‘Red Cross Law’ (1995) 35(308) irrc 491–​519.

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of the Statutes derives from the constitutive aspect.128 It would be absurd if states had participated in the constitution of the Statutes –​with duties for the components of the Movement –​without establishing obligations for themselves.129 As an additional argument, Bugnion cites the principle of estoppel, according to which states recognised the binding character of the Statutes by participating in the International Conferences.130 Bugnion’s argumentation, however, arrives at a false conclusion since it derives the binding character of the Statutes from the assumption that the International Conference is an international organisation. This characterisation as an international organisation presupposes the binding nature of the constituting instrument.131 Even if the International Conference were an international organisation based on its Statutes, this would not mean that the rules concerning the icrc were binding nor would it confer a competence to the icrc to interpret and ascertain ihl.132 The argument that refers to the principle of estoppel fails to recognise that in international law, this principle –​which protects legitimate expectations of states caused by the conduct of another state –​is merely a plea in court.133 It cannot justify the Statutes’ binding character on states.

128 Bugnion, The International Committee of the Red Cross, pp. 368–​ 70 referring to R. Perruchoud, Les Résolutions des Conférences Internationales de la Croix-​Rouge (Institut Henry-​Dunant, 1979), p. 106. 129 Bugnion, The International Committee of the Red Cross, p. 369. 130 Ibid, p. 370. 131 International law does not define what an international organisation is. However, the binding character of the constitutional basis is widely presumed, see e.g. K. Schmalenbach, ‘International Organizations or Institutions, General Aspects’, mpepil, October 2020, paras. 3–​6; R. Kolb, ‘International Organizations or Institutions, History of’, mpepil, January 2011, para. 1; unga, Resolution adopted by the General Assembly on 9 December 2011: Responsibility of international organizations, UN Doc a/​r es/​66/​100 (27 February 2012), Article 2 (a). 132 Finally, Bugnion concludes that the icrc possesses a competence to interpret ihl, but remains vague on the legal effect of the icrc’s interpretations, see Bugnion, The International Committee of the Red Cross, pp. 918–​9 (‘It cannot be assumed that states have through their consistent practice recognized the International Committee as competent to interpret the humanitarian Conventions, while themselves being entitled to dismiss its interpretation as worthless. Such a conclusion would be totally inadmissible. In other words, although states are not bound by the icrc’s interpretation they must examine it in good faith. There would otherwise be no point in recognizing the icrc as competent to interpret the Conventions’). 133 T. Cottier and J. P. Müller, ‘Estoppel’, mpepil, September 2021, paras. 1–​3.

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Christy Shucksmith follows Bugnion’s line of reasoning when arguing that the Statutes confer competences to the icrc.134 In support of her conclusion, she asks the rhetorical question of why states signed the Geneva Conventions, attended the International Red Cross and Red Crescent Conferences, adopted resolutions and concluded headquarters agreements with the icrc to promote its presence and work if they did not consider the rules in the Statutes on the role of the icrc to be binding.135 However, this question of whether the behaviour of states makes sense cannot replace a derivation of the binding character of the Statutes –​not to mention a conferment of competences to the icrc. Sandesh Sivakumaran refers to the icrc as a state-​empowered entity, alongside the International Law Commission and the UN human rights treaty bodies.136 For Sivakumaran, a state-​empowered entity has the authority to make and to shape the law, which ‘includes, inter alia, creating, developing, interpreting, applying, and proposing changes to the law.’137 However, Sivakumaran does not specify this authority for the icrc or provide any derivation of the competences of the icrc under the Statutes. 2.2.4

No Conferment of Competence through Subsequent Recognition by States While the genesis and the wording of the Statutes of the Movement show that Article 5 (2) was not intended to confer any competences on the icrc, the question arises whether the icrc was conferred a competence to interpret and ascertain ihl through subsequent recognition by states of the icrc’s role in the development of ihl. This reasoning is, to some extent, put forward in the argumentation by Bugnion, Shucksmith and Sivakumaran respectively.

134 C. Shucksmith, The International Committee of the Red Cross and its Mandate to Protect and Assist: Law and Practice (2015), pp. 41–​5. 135 Ibid, p. 45. 136 Sivakumaran, ‘Beyond States and Non-​State Actors’, 351 (defining state-​empowered entity as ‘entity that States have empowered to carry out particular functions. A state-​ empowered entity is usually created and empowered on the international plane “by two or more states and granted authority to make decisions or take actions.” However, on occasion, States empower an entity that is already in existence to carry out particular functions. Thus, it is the States’ decision to empower rather than to create that is the key’). For further information on the concept of the state empowered entity, see also A. Roberts and S. Sivakumaran, ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’ (2012) 37(1) Yale Journal of International Law 107–​52. 137 Ibid, p. 358.

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However, their argumentation lacks a comprehensive presentation of state practice.138 The recalling of the mandates or functions of the icrc under the Statutes of the Movement in status agreements between the icrc and more than 100 states does not provide any information on the position of those states regarding a competence of the icrc to develop ihl.139 These agreements only make an abstract reference to the Statutes140 or only mention them in relation to humanitarian aid,141 but not in relation to the development of ihl. In general, status agreements enable the icrc to protect and help people affected by armed conflicts in the country with which the agreement is concluded.142 Therefore, they grant the icrc legal protections and privileges; and ensure the confidentiality of the icrc’s work.143 They do not address the icrc’s role in the making of ihl. The analysis of the use of the Commentaries, the Study and the Guidance in legal practice in Chapter 2 reveals that references to these publications were sometimes made out of a sense of legal obligation. Yet, usually no link was made to the icrc’s role under the Statutes of the Movement. However, the non-​binding character of the Commentaries,144 the Study145 and the Guidance146 was emphasised in state practice and the jurisprudence of international courts and tribunals. In general, a belief in the correctness of the 138 In this context, see also Melzer, International Humanitarian Law, p. 320 (who unspecifically speaks of the establishment of the icrc’s mandate through subsequent recognition and only refers to the preparation of treaty-​based ihl. 139 For detailed information on the status agreements between the icrc and states, see J.-​P. Lavoyer and S. Vité, ‘The International Committee of the Red Cross: Legal Status, Privileges, and Immunities’, in D. Fleck (ed.), The Handbook of the Law of Visiting Forces, 2nd edn. (oup, 2018), pp. 552–​6. 140 See e.g. Agreement between the International Committee of the Red Cross and the Swiss Federal Council to determine the legal status of the Committee in Switzerland, Article 1 (Personality), reprinted in (1993) 33(293) irrc 152–​60. 141 See e.g. Headquarters Agreement between His Majesty’s Government of Nepal and the International Committee of the Red Cross on the Establishment of Delegation in Kathmandu, Nepal, Article iv (Purposes of the Delegation) accessed 31 August 2023. 142 K. Dörmann, ‘Status update: The icrc’s legal standing explained’, icrc, 12 March 2019 accessed 31 August 2023. 143 Ibid. 144 See Chapter 2, at 1.1.4, 1.2.1, 2.2.2. 145 See Chapter 2, at 3.3.1. 146 See Chapter 2, at 4.3.

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icrc’s interpretations and law-​ascertainments based on non-​legal criteria rather than a sense of legal obligation seem to be decisive for the reliance on them by legal scholars and practitioners.147 Recent state practice reinforces the impression that there is no conferment of competence to interpret and ascertain ihl through recognition of the icrc’s role under the Statutes. The US, in its comments to the International Law Commission’s draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, expressed its concern regarding the discussion on the role of the icrc within the accompanying commentary that it may be misunderstood by readers as endorsing the view that the icrc has a mandate to interpret authoritatively the 1949 Geneva Conventions and their Additional Protocols. The mandate from the Statutes of the Movement does not have the legal effect of authorizing the icrc to issue binding interpretations of the 1949 Geneva Conventions.148 At the same time, no other state referred to the icrc’s role under the Statutes when arguing for the legal relevance of the icrc’s interpretation in their comments to the International Law Commission’s draft conclusions on subsequent agreements and subsequent practice, as well as on the identification of customary international law. Only Austria referred to the functions exercised by the icrc under its ‘international mandate’ when stating that [t]‌here is no reason to assume that rules resulting from practice to which io s or the icrc have contributed would not become rules of customary international law, applicable to both states and io s.149

1 47 See Chapter 2. 148 US, ‘Comments from the United States on the International Law Commission’s Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties as adopted by the Commission in 2016 on First Reading’ accessed 31 August 2023, p. 6. 149 Austria, International Law Commission Report on the Work of its sixty-​eighth Session Chapter V ‘Identification of customary international law’, written comments by Austria

accessed 31 August 2023.

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However, Austria did not specifically point to the Statutes of the Movement. The statement’s context implies that the reference to the ‘international mandate’ focusses on the icrc’s functions under the Geneva Conventions and Additional Protocols. During the 31st and 32nd International Conferences of the Red Cross and Red Crescent, resolutions recalled the important role of the icrc and the other components of the Movement under the Statutes but, at the same time, emphasised the primary role of states in the development of ihl.150 In addition, the resolution on strengthening ihl protecting persons deprived of their liberty pointed out that it ‘does not modify the mandates, roles and responsibilities of the components of the [Movement] as prescribed in the Statutes’ right after emphasising that the resolution ‘does not give rise to new legal obligations under international law’.151 The International Law Commission, in its commentary on the draft conclusions on subsequent interpretation and subsequent practice, referred to these developments at the International Conferences when presenting the Statutes as the basis for the icrc’s interpretations and concluded that the icrc has no competence to interpret ihl.152 In sum, there is no consistent state practice that allows for the conclusion that states, through subsequent recognition of the icrc’s role under the Statutes, conferred a competence on the icrc to interpret or ascertain ihl. Accordingly, the icrc may not legally decide on the substance and limits of international law. Its interpretations and law-​ascertainments are not legally binding. Nevertheless, the icrc plays a factual role for the substance and limits of IHL. The next section and Chapter 2 are dedicated to discussing and examining this role.

150 32nd International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening international humanitarian law protecting persons deprived of their liberty and Resolution 2: Strengthening compliance with international humanitarian law, Geneva, 8–​10 December 2015, reprinted in ‘Resolutions’ (2016) 97(900) irrc 1379–​502 at 1390–​4; 31st International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening legal protection for victims of armed conflicts, Geneva, 28 November–​1 December 2011, reprinted in ‘Resolutions’ (2012) 94(885) irrc 355–​415 at 379–​81. 151 32nd International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening international humanitarian law protecting persons deprived of their liberty, Geneva, 8–​10 December 2015, reprinted in ‘Resolutions’ (2016) 97(900) irrc 1389–​ 502 at 1390–​2. 152 unga, Report of the International Law Commission (2018), pp. 41–​2.

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Chapter 1

The icrc’s De Facto Authority

De facto authority is a result of individual dynamic processes and depends on the context, including time and situation.153 It is therefore impossible to define the icrc’s de facto authority to interpret and ascertain ihl as such. The evaluation of de facto authority is empirical, retrospective and has to be individually evaluated for each case. However, this section highlights those marks that are likely to play a constant role for the icrc’s authority. Chapter 2 then specifies the authority for the icrc’s commentaries, the Study and the Guidance. What plays a particular role for the icrc’s authority is its close link to the history of ihl. The icrc initiated core treaties, among them the Geneva Conventions and the Additional Protocols, and is the originator for many other initiatives that contributed to the making of ihl.154 From this link to the history of ihl, expertise emerges as a further mark of the icrc’s authority. The icrc is perceived to have distinctive expertise in ihl and its application in armed conflicts.155 The experts from the icrc’s legal division are invited to nearly all expert processes on ihl156 and assist many countries in the writing of military manuals.157

153 Zarbiyev, ‘Saying Credibly What the Law Is’, 310–​1. See also Brudner, ‘The Evolution of Authority’, p. 22. 154 E.g. the icrc’s challenges reports, which are submitted to the International Conference of the Red Cross and Red Crescent. In these reports, the icrc points to challenges of contemporary armed conflicts to ihl in order to initiate developments based on the consent of the state parties to the Geneva Conventions, see e.g. the latest report: icrc, ‘International humanitarian law and the challenges of contemporary armed conflicts: Recommitting to protection in armed conflict on the 70th anniversary of the Geneva Conventions’, 33ic/​ 19/​9.7, October 2019 accessed 31 August 2023. 155 See also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1865. On the role of expertise in general, see e.g. Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 515–​7 (pointing out that Judges give more weight to writers whom they consider experts). 156 See e.g. Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare, p. 7; Program on Humanitarian Policy and Conflict Research at Harvard University (ed.), Commentary on the hpcr Manual on International Law Applicable to Air and Missile Warfare (cup, 2010), pp. 8–​11. 157 See e.g. Comando General de las Fuerzas Militares, Manual De Derecho Operacional: Manual ff.mm 3–​41 Público (República de Colombia, Bogotá, 2009), p. 10; Republic of Sierra Leone Armed Forces, The Law of Armed Conflict, Introduction; Nepal, by order of the Chief of the Army Staff, Nirendra Prasad Aryal, Nepal Army Handbook on Law of Armed Conflict, p. 2.

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Moreover, the icrc enjoys moral authority.158 The icrc was awarded three Nobel Peace Prices for its work to help victims of armed conflicts, which includes its contributions to the making of ihl. Such accolades are, for instance, referred to in a handbook for the training of the Israeli armed forces when introducing the icrc’s function in the field.159 Particularly important for the icrc’s moral authority is its adherence to the fundamental principles of the Red Cross and Red Crescent Movement,160 namely the principles of humanity, impartiality, neutrality, independence, voluntary service, unity and universality.161 In particular, the principles of neutrality, impartiality and independence were seen to contribute to the icrc’s efforts to strengthening compliance with ihl.162 This certainly can also be assumed for the interpretation and ascertaining of ihl.163 icrc staff members

158 On moral authority, see A. Benz, ‘Legitimität und Autorität in der globalen Ordnung’, in M. Albert, N. Deitelhoff and G. Hellmann (eds.), Ordnung und Regieren in der Weltgesellschaft (Springer, 2018), p. 343. 159 Israel Defense Army School of Military Law and Military Advocate-​General’s Corps Command, Rules of Warfare on the Battlefield (International Law Department; Academy of Military Law, 2006), p. 35. 160 Cf. Article 1 (2) and 5 (1) (a), as well as the Preamble of the Statutes of the International Red Cross and Red Crescent Movement. The principles are read aloud at the opening of each International Conference of the Red Cross and Red Crescent. Although the seven fundamental principles were elaborated in this form only before the 20th International Conference of the Red Cross, held in Vienna in 1965, and then adopted by that conference, the icrc has been committed to these principles since its inception, see e.g. the two predecessor statutes: Article 6 (2), (5) and (6) Statutes of the International Red Cross, adopted by the 18th International Red Cross Conference, Toronto, 1952; Article 7 Statuts de la Croix-​Roughe Internationale, adopted by the 13th International Red Cross Conference, The Hague, 1928. See also J.-​L. Blondel, ‘The Fundamental Principles of the Red Cross and Red Crescent: Their origin and development’ (1991) 31(283) irrc 349–​57. On the role of values for authority, see e.g. R. E. Flathman, Practice of Political Authority: Authority and the Authoritative (Chicago University Press, 1980), pp. 63–​4; Zürn, A theory of global governance, p. 52. 161 Blondel, ‘The Fundamental Principles’, 353–​6; J. S. Pictet, Red Cross Principles (icrc, 1956). 162 See H. Krieger, ‘Conclusion: Where States fail, non-​State actors rise? Inducing compliance with international humanitarian law in areas of limited statehood’, in H. Krieger (ed.), Inducing Compliance with International Humanitarian Law (cup, 2015), pp. 533–​4. Cf. also D. Steiger, ‘Enforcing international humanitarian law through human rights bodies’, in H. Krieger (ed.), Inducing Compliance with International Humanitarian Law (cup, 2015), p. 265 (pointing out the relevance of neutrality for the enforcement of ihl by human rights bodies). 163 Cf. in this context also European Council, Updated European Union Guidelines on promoting compliance with international humanitarian law (ihl), 2009/​C 303/​06, para. 5 (‘The International Committee of the Red Cross (icrc) has a treaty-​based, recognised

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generally highlight the importance of the principle of neutrality for their work.164 In addition, the special relationship with Switzerland –​which is the depository state of the Geneva Conventions and the Additional Protocols165 –​contributes to the icrc’s authority.166 The icrc is founded in Swiss law.167 According to Article 7 (1) of its Statutes, ‘[t]‌he icrc shall co-​opt its Members from among Swiss citizens’. Switzerland helps the icrc to maintain its core values of independence and neutrality168 and also plays a supportive role for the icrc’s initiatives to develop ihl such as its attempts to strengthening compliance with ihl.169 Lastly, the common perception of the icrc as a special actor in international law contributes to the icrc’s authority to interpret and ascertain ihl.170 It is significant that all state parties to the Geneva Conventions, when adopting the Statutes of the Movement, approved of the icrc’s role for the understanding, dissemination and development of ihl. One indication that the icrc’s authority is built on the perception of the icrc as a special actor is the discussion of how international law governs the usage of its interpretations and law-​ascertainments.171

and long-​established role as a neutral, independent humanitarian organisation, in promoting compliance with ihl.’). 164 C. F. Brühwiler, P. Egli and Y. Sánchez, ‘The icrc at a crossroads: Swiss roots-​international outlook’ (2019) 4(13) Journal of International Humanitarian Action 1–​17 at 10. 165 Article 57 gc i, Article 56 gc ii, Article 137 gc iii, Article 152 gc iv, Article 93 ap i, Article 21 ap ii, Article 9 ap iii. 166 On the relationship between the icrc and Switzerland, see Brühwiler, Egli and Sánchez, ‘The icrc at a crossroads’, 2 referring to Schweizerische Eidgenossenschaft, ‘Botschaft zur internationalen Zusammenarbeit 2017–​2020’, 2408. 2016/​2333.pdf> accessed 31 August 2023 (emphasising the special relationship to the icrc). 167 According to Article 2(1) Statutes of the International Committee of the Red Cross, the ‘icrc is an association governed by Article 60 and following of the Swiss Civil Code’. 168 Brühwiler, Egli and Sánchez, ‘The icrc at a crossroads’, 12–​3. 169 Krieger, ‘Where States fail, non-​State actors rise?’, pp. 533–​4. Note also the cooperation between the icrc and Switzerland for the clarification of obligations regarding private military and security companies in armed conflicts, Swiss Federal Department of Foreign Affairs and icrc, The Montreux Document (icrc, 2008). 170 See also See also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1865. On the perception of the icrc as a special actor in international law, see the introduction. See also the discussion in this chapter on whether international law confers a competence to the icrc to interpret and ascertain ihl. 171 See Chapter 4.

The Authority of the icrc

4

53

No Legal Bindingness

The icrc has no competence to interpret and ascertain ihl. This means that the icrc’s interpretations and law-​ascertainments are not legally binding. It is primarily the role of states to legally decide what constitutes ihl. However, the icrc possesses factual authority to interpret and ascertain ihl based on its history, its expertise, its moral commitments, its special relationship with Switzerland and the perception that it is a special actor under international law. Chapter 2 specifies this de facto authority for five of the icrc’s publications: The Pictet Commentaries, the ap Commentary, the Study, the Guidance and the new Commentaries.

­c hapter 2

De Facto Authority of the icrc’s Interpretations and Law-​Ascertainments Since de facto authority depends on recognition, this chapter examines to what extent and for what reasons the Pictet Commentaries, the ap Commentary, the Study, the Guidance and the new Commentaries are relied on in academia, the jurisprudence of international courts and tribunals and state practice. On this basis, the marks of authority of these five outputs are identified in order to reflect on what criteria are decisive for the icrc to determine normativity in ihl. Subsequently, this chapter reflects on how and why the marks of authority have changed and what this means for the role of the icrc to interpret and ascertain rules of ihl. 1

Pictet Commentaries

Shortly after the 1949 diplomatic conference, which saw the adoption of the four Geneva Conventions, the icrc decided to instruct the writing of commentaries to each of the four Conventions.1 The icrc entrusted the task of writing the Commentaries to those who had worked on the drafting of the Conventions and who were involved in the negotiating processes with the task. This included Jean Pictet, who became the general editor.2 Although the icrc published the Commentaries, the foreword of each Commentary emphasises that the Commentaries were the personal work of its authors.3 The task was, above all, to provide explanations where the Conventions fell short and to resolve ambiguity.4 The Conventions included several new 1 Pictet, Commentary gc i, p. 7. 2 Ibid. E.g. Claude Pilloud assisted the Drafting Committee in the capacity of expert, see his statements in Final Record of the Diplomatic Conference of Geneva of 1949, Vol ii, Section A, pp. 632–​812. In general, the Final Records repeatedly refer to the involvement of the authors in the discussions and the use of their expert knowledge. 3 Pictet, Commentary gc i, p. 7; Pictet, Commentary gc ii, p. 1; Pictet, Commentary gc iii, p. 1; Pictet, Commentary gc iv, p. 1. 4 See also Mohr and Policinski, ‘From the Gilded Age to the Digital Age’, 1910–​1, referring to icrc, ‘Schéma relatif à l’établissement des Commentaires des nouvelles Conventions de Genève’, Minutes of Meetings, Legal Commission, 14 September 1949, icrc archives.

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_004

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terms, such as the term ‘armed conflict’, and new rules, like Common Article 3, which is the first rule of treaty-​based international law that regulates civil wars.5 There was no uniform methodology for the interpretation of international treaties in international law at the time that the Commentaries were written (having been published between 1952 and 1960). The vclt, which nowadays provides a widely accepted approach on the interpretation of treaties in its Articles 31 to 33, was adopted in 1969 after the publication of the Commentaries; and only entered into force in 1980. Before the vclt imposed a prioritisation of the objective method (Article 31) over the subjective method (Article 32),6 both methods were applied depending on the interpreter’s preference.7 International law did not dictate the methods of treaty interpretation. The Commentaries do not prioritise the subjective or objective method nor do they differentiate between both methods. To the extent that the Pictet Commentaries rely on the means of treaty interpretation, they refer to the wording,8 the purpose of the Conventions,9 state practice before 1949,10 previous conventions11 and commentaries thereon,12 the travaux préparatoires,13 and the circumstances of the time of conclusion of the Conventions.14 In addition, the interpretations of the Pictet Commentaries often build on humanitarian considerations and refer to the spirit of the time after the Second World War,15 using passionate 5

6 7 8 9 10 11 12 13 14 15

S. Watts, ‘The Updated First Geneva Convention Commentary, dod’s Law of War Manual, and a More Perfect Law of War: Part I’, Just Security, 5 July 2016; T. M. Fazal, Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Cornell University Press, 2018), p. 30. L. Sbolci, ‘Supplementary Means of Interpretation’, in Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (oup, 2011), p. 146. Compare the wording in Article 31 (‘shall’) and Article 32 (‘may’). See e.g. Pictet, Commentary gc i, p. 25. See e.g. Pictet, Commentary gc iv, p. 50. See e.g. Pictet, Commentary gc ii, p. 29. See e.g. Pictet, Commentary gc i, p. 25. See e.g. ibid, pp. 26–​7. See e.g. Pictet, Commentary gc iii, pp. 35–​6. See e.g. ibid, p. 39. E.g. Pictet, Commentary gc i, p. 34 (‘It was essential, however, to clarify the position, and to prevent a recurrence in the future of a situation similar to that of 1914. The horrors of the Second World War justify the belief that, if the “clausula si omnes” had still been in force then with no further provision governing the situation, the consequences in one connection or another might have been disastrous’). Note in this context that Boyd van Dijk revealed that the Pictet Commentaries established a specific narrative on the Geneva Conventions’ genesis, see B. van Dijk, Preparing for War: The Making of the Geneva Conventions (oup, 2022) pp. 4, 14–​5, 309–​10. In his book, van Dijk presents an alternative history of the Conventions’ drafting.

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language.16 State practice and academic writing on the Geneva Conventions were not taken into account since they hardly had emerged until the completion of the Commentaries. Overall, the Pictet Commentaries rarely support the interpretations by references but, rather, are based on the authors’ views.17 Moreover, no alternative interpretations are offered. The given interpretations are presented as the only correct ones. Has this rather outdated methodology affected the authority of the Pictet Commentaries? To answer this question, it is necessary to examine the extent to which the Commentaries have been relied on within international jurisprudence and in state practice.18 Broad Acceptance in the Jurisprudence of International Courts and Tribunals This section examines what weight has been given to the Pictet Commentaries in the jurisprudence of international courts and tribunals on the basis of the following examples: The application of the Geneva Conventions, the extension of the concept of protected persons in Article 4 gc iv and war crimes and crimes against humanity.

1.1

1.1.1 Application of the Geneva Conventions The application of the Geneva Conventions presupposes the existence of an armed conflict (Common Article 2 (1)), or an occupation of territory of a high contracting party (Common Article 2 (2)). The term ‘armed conflict’ was introduced for the first time in Common Article 2 of the Geneva Conventions. Before 1949, only the term ‘war’ was used and the application of the laws of 16

17

18

See e.g. Pictet, Commentary gc i, p. 50 (‘The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-​lived insurrection. Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions …? We do not subscribe to this view. We think, on the contrary, that the Article should be applied as widely as possible. There can be no reason against this’). Marco Sassòli stated at the conference ‘Zeit und Internationales Recht’ (Bochum, 15–​16 September 2017) that Jean Pictet could wake up in the morning with a new humanitarian interpretation for the Commentary in his mind and use it without any methodological involvement. But see Mohr and Policinski, ‘From the Gilded Age to the Digital Age’, 1910–​1, who found a change in the approach to present personal opinions when compared to earlier commentaries (citing Pictet who stated that ‘if the author of the commentary has opinions to which he would like to give a more personal touch, he will mark them clearly in the margin’). The references to the Commentaries in academia are not examined separately but integrated in the discussion on the Pictet Commentaries’ marks of authority.

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war presupposed a formal declaration of war.19 Neither Common Article 2 nor Common Article 3 provide a definition of armed conflict. Thus, after the adoption of the Geneva Conventions, the meaning of the term had to be construed. According to the Pictet Commentaries on Common Article 2, which provided one of the first interpretations of the term, [a]‌ny difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.20 With regard to Common Article 3, the Pictet Commentaries do not provide an explicit definition of non-​international armed conflict. Instead, they list diverse criteria, which were discussed during the 1949 International Conference in Geneva as minimum requirements to distinguish armed conflicts from lower-​ threshold forms of violence, among them the organisation of an armed group.21 In 1995, an international judicial institution had to fundamentally deal with the question of what constitutes an armed conflict for the first time.22 The icty Appeals Chamber in Tadić defined armed conflict as follows: [A]‌n armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international 19

20 21 22

See e.g. Article 24 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field; Article 3 Convention relative to the Opening of Hostilities; Article 25 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Pictet, Commentary gc i, p. 32. Ibid, pp. 49–​50. Note that the International Court of Justice had already dealt with the notion of armed conflict in Case Concerning Military and Paramilitary Activities in and Against Nicaragua. However, the Court did not examine the individual prerequisites of what constitutes an armed conflict, but merely ascertained the existence of an armed conflict, see icj, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, icj Rep 1986, p. 14, para. 219.

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humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.23 Although the Appeals Chamber made no reference to the Pictet Commentaries, the Commentaries’ interpretations of Common Articles 2 and 3 can certainly be identified as a starting point for this definition.24 Regarding the definition of international armed conflict, in subsequent case law, international courts and tribunals often referred to the Pictet Commentaries’ definition of this term, which was already supported in state practice and legal scholarship prior to the establishment of the two criminal tribunals for the former Yugoslavia and Rwanda.25 In particular, the icty, the ictr and the International Criminal Court have usually referred to the Commentaries, in addition to the Tadić decision and other case law or vice versa.26 The International Criminal Court Pre-​Trial Chamber in Lubanga Dyilo, for instance, adopted the Pictet Commentaries’ definition of armed conflict and stated hereafter that ‘the [Tadić] Appeals Chamber of the icty adopts the same interpretation of the expression “international armed conflict”.’27 Other decisions left the case law, including the Tadić decision, completely aside and only adopted the Pictet Commentaries’ definition of armed conflict.28 Regarding the definition of non-​international armed conflicts, the two criteria identified by the Tadić Appeals Chamber to be decisive, namely the intensity and protracted nature of armed violence as well as the organisation of the armed

23 24

25 26 27 28

icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​A (2 October 1995) para. 70. Grignon, ‘Les Commentaires des Conventions de Genève Rédigés sous la Direction de Jean Pictet’, pp. 140–​1; Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda, p. 92; Darcy, Judges, Law and War, p. 105. C. Kreß, ‘The 1999 Crisis in East Timor and the Threshold of the Law on War Crimes’ (2002) 13 Criminal Law Forum 409–​70 at 413 with further references. icc, Prosecutor v Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​04-​01/​06 (14 March 2012) para. 541; icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 1177. icc, Prosecutor v Lubanga Dyilo (Confirmation of charges) Case No icc-​01/​04-​01/​06-​803 (29 January 2007) paras. 207–​8. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 208; icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​01/​04-​01/​10-​465-​Red (16 December 2011) paras. 100–​1; icc, Prosecutor v Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges) Case No icc-​01/​05-​01/​08 (15 June 2009) paras. 220–​3.

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group(s),29 have found recognition in subsequent case law.30 Nevertheless, the icty and the ictr continually referred to the Pictet Commentaries to confirm the Tadić criteria, to further elaborate the Tadić criteria or to introduce additional criteria from the Commentaries to determine the existence of a non-​ international armed conflict.31 In this regard, for example, based on the Pictet Commentaries, the Tadić Trial Chamber argued that the criteria provided by the Tadić Appeal Chamber are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-​lived insurrections, or terrorist activities, which are not subject to international humanitarian law. Factors relevant to this determination are addressed in the Commentary.32 The Trial Chamber went into additional criteria mentioned by the Pictet Commentaries in the paragraphs that followed.33 Regarding occupation, Common Article 2 (2) only refers to situations where the occupation of state territory meets with no armed resistance. Situations of occupation involving hostilities, i.e. an armed conflict, are already covered

29 30

31

32 33

icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​A (2 October 1995) para. 70. See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 183; ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) para. 619; ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 December 1999) paras. 92–​3; icty, Prosecutor v Limaj et al. (Judgment) No. it-​03-​66-​T (30 November 2005) para. 90; icty, Prosecutor v Haradinaj et al. (Judgment) Case No it-​04-​ 84-​T (3 April 2008) paras. 389–​95. ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) paras. 614–​20; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 32; icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​T (30 June 2006) para. 254; icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​T (10 July 2008) paras. 178, 185; icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) para. 820; icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​ 1-​T (23 February 2011) para. 1525; icty, Prosecutor v Haradinaj et al. (Judgment) Case No it-​04-​84bis-​T (29 November 2012) para. 393. In Đorđević as well as Haradinaj et al. the Trial Chamber referred also to the Boškoski and Tarčulovski Trial Judgment by highlighting that the judgment cites the Pictet Commentary. In Rutaganda, the ictr Trial Chamber adopted the Pictet Commentaries interpretation on Common Article 3 even first and only then referred to the Tadić criteria afterwards, see ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 December 1999) para. 92. icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​T (7 May 1997) para. 562. Ibid, paras. 562–​8.

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by Common Article 2 (1). In international law, it is generally held that ‘territory is considered occupied when it is actually placed under the authority of the hostile army.’34 However, the question of authority allows for at least two different interpretations;35 and the answer to this question is crucial for the applicability of the Geneva Conventions, which do not provide a definition of occupation in general or authority in particular. On the one hand, a restrictive interpretation is proposed, requiring that the authority is ‘in fact established and exercised by the intervening State’ so that it substitutes the authority of the ousted government.36 On the other hand, it is argued that potential control by the foreign army within foreign territory is sufficient. This latter approach is suggested by the Pictet Commentary on gc iv according to which ‘[t]‌here is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation.’37 In 1996, the Rajić Trial Chamber of the icty had to deal with the question of what degree of control is necessary to assume a state of occupation for the application of the Geneva Conventions. When interpreting the term of occupation, the Trial Chamber relied on the Pictet Commentary on gc iv to conclude that in the case at hand, a state of occupation existed and that therefore, the property of the civilian population ‘became protected property for the purposes of the grave breaches provisions of Geneva Convention iv’.38 The Naletilic Trial Chamber came to the same conclusion, basing its findings almost exclusively on the Pictet Commentary on gc iv.39 The Brđanin Trial Chamber adopted the explanations from the Naletilic judgment, but highlighted at the same time that the Naletilic Trial Chamber had followed the Pictet Commentary on gc iv.40 34

35 36

37 38 39 40

Article 42 of the Convention respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910), reflecting customary international law according to the International Court of Justice, see icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, icj Rep 2005, p. 168, para. 172. E. Benvenisti, ‘Occupation, Belligerent’, mpepil, May 2009, para. 5. See e.g. icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, icj Rep 2005, p. 168, para. 172. However, the International Court of Justice only dealt with Article 42 of the Convention respecting the Laws and Customs of War on Land and did not provide reasoning for its position. Pictet, Commentary gc iv, pp. 59–​60. icty, Prosecutor v Rajić (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence) Case No it-​95-​12 (13 September 1996) para. 41. icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) paras. 215–​21. icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 638 (fn. 1632).

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It can be summarised that the decisions of the icty, ictr as well as the International Criminal Court on the applicability of the Conventions can be traced back to the Pictet Commentaries. This observation is made in particular for the fundamental decisions of the icty at the beginning of its jurisprudence. It is also noticeable that later, the two criminal tribunals as well as the International Criminal Court continually referred to the Pictet Commentaries in order to determine the applicability of the Geneva Conventions, despite the existence of established case law. 1.1.2 Extension of the Concept of Protected Persons in Article 4 gc iv The Yugoslav Wars were characterised by inter-​ethnic armed conflicts and the creation of new states during the conflict. The source of allegiance during these conflicts was ethnicity rather than nationality. Against this background, the icty was confronted with the rather restrictive wording of Article 4 gc iv excluding, inter alia, states’ own nationals (Article 4 (1)) as well as nationals of a co-​belligerent state (Article 4 (2)) from the protective scope of gc iv. The Pictet Commentary on gc iv does not introduce a different reading of Article 4 (1) gc iv, but confirms the restrictive wording, by explaining that [t]‌he definition has been put in a negative form; as it is intended to cover anyone who is not a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This is a very special case, based on the position such people have taken up with regard to their own country.41 While in 1997, the Tadić Trial Chamber still confirmed this restrictive approach,42 only one year later, the Delalić Trial Chamber extended the concept of protected persons in Article 4 (1) gc iv to include states’ own nationals through a teleological interpretation. Notably, the Trial Chamber’s approach in Delalić regarding the Pictet Commentary is interesting because of how it used the Commentary despite the Commentary’s support for the restrictive wording of Article 4 (1) gc iv. Although, in the beginning, the Chamber mentioned

41 42

Pictet, Commentary gc iv, p. 46. icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​T (7 May 1997) paras. 578–​607.

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the Commentary among other sources in argument for a restrictive interpretation, the Chamber later referred to explanations of the Pictet Commentary on Common Article 2 to emphasise the purpose of the Geneva Conventions, and to substantiate an extensive interpretation: Bearing in mind the relative merits of the ‘effective link’ and the ‘agency’ approaches, this Trial Chamber wishes to emphasise the necessity of considering the requirements of article 4 of the Fourth Geneva Convention in a more flexible manner. The provisions of domestic legislation on citizenship in a situation of violent State succession cannot be determinative of the protected status of persons caught up in conflicts which ensue from such events. The Commentary to the Fourth Geneva Convention charges us not to forget that ‘the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests’ and thus it is the view of this Trial Chamber that their protections should be applied to as broad a category of persons as possible.43 Thus, despite its restrictive interpretation of Article 4 (1) gc iv, the Pictet Commentary was used by the Trial Chamber to support an extensive interpretation of the same rule. Before the Delalić Appeals Chamber, the appellants reiterated that states nationals are not protected persons in the meaning of Article 4 (1) gc iv, based on the restrictive interpretation of the Pictet Commentary.44 The Appeals Chamber, however, dismissed the argument by stating that [t]‌he Commentary did not envisage the situation of an internationalised conflict where a foreign State supports one of the parties to the conflict, and where the victims are detained because of their ethnicity, and because they are regarded by their captors as operating on behalf of the enemy.45 The Appeals Chamber emphasised this reason only for the Commentary but not for Article 4 (1) gc iv, although the clear wording of this provision (of which they are not nationals) would similarly have required an explanation. The findings of the Delalić Trial Chamber subsequently developed into established case 43 44 45

icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 263 referring to Pictet, Commentary gc iv, p. 21. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 78. Ibid, para. 79.

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law.46 The ‘allegiance to a Party to the conflict’, i.e. ethnicity, replaced nationality as the criterion for the exclusion of protection under Article 4 (1) gc iv. Similar to Article 4 (1) gc iv, the Pictet Commentary on Article 4 (2) gc iv confirms the exclusion of nationals of co-​belligerent states for the protective scope of gc iv.47 While in principle the considerations of the Delalić Trial Chamber regarding the nationality requirement in Article 4 (1) gc iv could also apply to Article 4 (2) gc iv,48 only the requirement of normal diplomatic representation was at the centre of the icty’s jurisprudence. The Blaškić Appeals Chamber was confronted with the appellant’s submission that the Pictet Commentary on gc iv suggests (as Article 4 (2) gc iv does, which was not mentioned by the appellants) that the nationals of a co-​belligerent state are not protected persons under gc iv, so long as the state whose nationals they are has normal diplomatic representation in the belligerent state. The Chamber replied that the appellant omits the further explanations in the Commentary on the prerequisites of diplomatic representations to be normal.49 The Commentary interprets normal diplomatic representations as requiring that the representations made by the diplomatic representative will be followed by results and that satisfactory replies will be given to him. It would also seem essential for the representatives in question to have sufficient liberty of action and liberty of movement to be able to visit their fellow-​countrymen and come to their help when circumstances so require.50 46

47 48

49 50

See e.g. icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​A (15 July 1999) para. 166 (The Tadić Appeals Chamber rejected the restrictive interpretation by the Tadić Trial Chamber); icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 126 (fn. 256); icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) paras. 151-​2 (referring to the Appeals Chamber decision in Tadić); icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 418; icty, Prosecutor v Kordić and Cerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 148-​54; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) paras. 206–​7 (not only referring to Delalić but also to the Pictet Commentary); icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 100. Pictet, Commentary gc iv, p. 49. After citing the interpretation of the Pictet Commentary on Article 4 (2) gc iv, the Blaškić Trial Chamber asked with regard to the nationality requirement in Article 4 (2) gc iv whether in particular cases one might reflect on whether the exception must be strictly heeded. However, the Chamber ultimately left the question unanswered, see icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) paras. 144–​5. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 185. Pictet, Commentary gc iv, p. 49.

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On that basis the Chamber rejected the appellants’ submission concluding that it is evident both from the text of Article 4(2) and the accompanying Commentary, that for Article 4(2) to be relevant, it must be demonstrated, first, that the States were allies, and second, that they enjoyed effective and satisfactory diplomatic representation with each other.51 Apart from the question of exclusion from the protective scope, the Commentary on Article 4 gc iv was relied on for further elements of Article 4 gc iv, especially the requirement of ‘in the hands of’,52 for which the Commentary introduced a broad understanding.53 To conclude, despite contradictory interpretations, the Pictet Commentary on gc iv was taken by the icty as the basis for an extension of the concept of protected persons in Article 4 gc iv. Moreover, the examples of the extension of the concept of protected persons show that it was important for the icty chambers to ensure that the reasoning was in accordance with the Pictet Commentaries. 1.1.3 War Crimes and Crimes against Humanity The icty, the ictr and the Special Court for Sierra Leone were called upon to prosecute war crimes and crimes against humanity. For this purpose, they had to interpret the offences laid down in their statutes and the Geneva Conventions to which their statutes refer. Due to the international character of most of armed conflicts in the former Yugoslavia, the icty was particularly involved in the interpretations of the offences and the Geneva Conventions in several decisions. As will be demonstrated in the following section, in a large number of these decisions, the icty was guided by the Pictet Commentaries in its interpretations. Quite a few of these decisions have subsequently been

51 52

53

icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 186. icty, Prosecutor v Rajić (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence) Case No it-​95-​12 (13 September 1996) para. 36; icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​T (7 May 1997) para. 579; icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 416; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 208; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 101. See also the Appeals Chamber’s judgment, icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​ A (29 November 2017) para. 359. Pictet, Commentary gc iv, p. 47.

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applied in legal practice and in academia as leading decisions.54 In this regard, the Trial Chamber’s judgment in Delalić is a particularly outstanding example as it extensively relied on the Pictet Commentaries in numerous interpretations. One of the interpretations of the Delalić Trial Chamber concerns the notion of inhuman treatment.55 At the beginning of its survey on the notion of inhuman treatment, the Trial Chamber observed the absence of a definition of inhuman treatment in international law and consulted the Oxford Dictionary, which defines inhuman treatment by reference to its antonym ‘humane treatment’.56 After noting that the dictionary approach accords with the Pictet Commentaries’ approach,57 the Trial Chamber investigated, in sixteen paragraphs, the interpretation of (in-​)humane treatment by the Pictet Commentaries regarding several provisions of the Geneva Conventions.58 The Chamber then investigated how other international adjudicative bodies had interpreted the prohibition on inhuman treatment.59 However, this investigation did not generate additional information to, but rather confirmed, the findings from the Commentaries. In conclusion, the Trial Chamber defined inhuman treatment as an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The plain, ordinary meaning of the term inhuman treatment in the context of the Geneva Conventions confirms this approach and clarifies the meaning of the offence. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed ‘grave breaches’ in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent 54

55 56 57 58 59

On the pioneering role of the icty and the ictr in the interpretation of war crimes, see S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (oup, 2010); A. M. Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’ (2006) 59 Vanderbilt Law Review 1–​57. According to the icty Statute, inhuman treatment may constitute a grave breach of the Geneva Conventions (Article 2 lit. b), a violation of the laws or customs of war (Article 3), as well as a crime against humanity (Article 5 lit. e). icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) paras. 517–​8. Ibid, para. 519. Ibid, paras. 519–​34. Ibid, paras. 534–​42.

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with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.60 Although this definition was not directly deduced from the Pictet Commentaries, several of its elements can be traced back to the Commentaries, including the findings (1) that not only physical or injury to health but also injury to human dignity constitutes inhuman treatment;61 (2) that humane treatment is the leitmotiv of the Geneva Conventions;62 (3) that the obligation of humane treatment is general and absolute in character;63 (4) constitutes a positive obligation;64 and (5) that humane treatment is defined in the negative in relation to a general, non-​exhaustive catalogue of acts which are inconsistent with humane treatment, these constituting inhuman treatment.65 The Delalić Trial Chamber’s definition of inhuman treatment has become established case law.66 A few decisions, however, still additionally referred to the Pictet Commentaries.67 The Delalić Trial Chamber used the definition of inhuman treatment also for the notion of cruel treatment,68 which subsequently also received the status as established case law.69

60 61 62 63 64 65 66

67

68 69

Ibid, para. 543. Ibid, paras. 521–​2. Ibid, para. 524. Ibid, paras. 524–​9. Ibid, paras. 524–​8. Ibid, para. 532. See e.g. icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) para. 52; icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) para. 26; icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) paras. 154–​ 5; icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) para. 502; icty, Prosecutor v Kordić and Cerkez (Judgment) Case No it-​ 95-​14/​2-​T (26 February 2001) para. 256; icty, Prosecutor v Simić et al. (Judgment) Case No it-​95-​9-​T (17 October 2003) para. 92. See e.g. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 237; icty, Prosecutor v Kordić and Cerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 243–​5 (the Trial Chamber even verified the case law on the basis of the Pictet Commentaries). icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) paras. 551-​2. See e.g. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 186; icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 265; icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 595; icty, Prosecutor v Stanišić and Župljanin (Judgment) Case No it-​08–​91-​T (27 March 2013) para. 56.

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Another of the Delalić Trial Chamber’s interpretation relying on the Pictet Commentaries concerns the notion of wilfully causing great suffering or serious injury to body or health.70 The Trial Chamber defined the offence of wilfully causing great suffering or serious injury to body or health as an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence.71 This definition is in essence based on the Pictet Commentaries. The Trial Chamber almost exclusively examined the Commentaries,72 pointing out that the Commentaries to the second, third and fourth Geneva Conventions had identical interpretations on this point.73 Only with regard to the seriousness of the injury, did the Trial Chamber take into account the ‘plain ordinary meaning of the word [serious]’ for which it consulted the Oxford Dictionary in addition to the proposal of the Commentaries to measure the seriousness of the injury along the inability to work.74 However, the result of this inquiry into the wording was not included in the final definition. The Delalić Trial Chamber’s definition of wilfully causing great suffering or serious injury to body or health has become established case law.75 However, in subsequent decisions by the icty, the Commentaries were additionally referred to yet again.76 Lastly, the Delalić Trial Chamber shaped the notion of unlawful confinement of civilians, which constitutes a grave breach of the Geneva Conventions.77 The Trial Chamber extensively investigated the Pictet Commentary on Articles 5,

70 71 72 73 74 75 76

77

See Article 2 (c) icty-​Statute, Article 50 gc i, Article 51 gc ii, Article 130 gc iii, Article 147 gc iv. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 511. Ibid, paras. 507–​10. Ibid, para. 507. Ibid, para. 510 (supplementary information added). See e.g. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 156; icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 243–​5. See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 245; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 340 (adding that the Commentary on this point was also ‘referred to in Kordic Trial Judgment, para 243’). See Article 2 (g) icty Statute, Article 147 gc iv.

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27 and 42 gc iv to expose the restrictions on confinement.78 Based on the investigation of the Commentary, the Chamber concluded that only absolute necessity, based on the requirements of State security, can justify recourse to these measures [confinement], and only then if security cannot be safeguarded by other, less severe means.79 While this interpretation has become established case law,80 subsequent decisions have frequently made reference to the Pictet Commentary on gc iv as well.81 The Kordić Trial Chamber only referred to the Delalić judgment after carrying out an extensive investigation of the Pictet Commentary on gc iv and adopting definitions therefrom.82 The Kunarac Trial Chamber neither referred to the Delalić judgment nor to other case law. It only cited the Pictet Commentary on Article 42 gc iv for restrictions on confinement.83 In addition to the interpretations by the Delalić Trial Chamber, several other decisions of the icty chambers have relied on the Pictet Commentaries and influenced the understanding of war crimes and crimes against humanity. Regarding the hostage-​taking of civilians,84 the Blaškić Trial Chamber first discussed the elements constituting this war crime, adopting the definition

78 79 80

81

82 83 84

icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) paras. 567–​71. Ibid, para. 571 (supplementary information added). See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) paras. 327–​30; icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​ T (26 February 2001) para. 291; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​ T (29 May 2013) paras. 133–​6; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​A (29 November 2017) para. 479. See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) paras. 327–​30. (adopting the threshold for detention of the civilian population from the Commentary); icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) paras. 133–​8; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​A (29 November 2017) para. 479. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 280–​4. icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) para. 532 (fn. 1301). This war crime is both covered by Article 2 (h) icty Statute as a grave breach of the Geneva Conventions (Article 147 gc iv) as well as by and Article 3 icty Statute, in conjunction with Common Article 3 (1) (b), as a violation of the laws or customs of war. According to the Blaškić Trial Chamber, in both cases the definition of hostages must be understood as being similar, see icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 187.

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of civilian hostages from the Pictet Commentary on Article 34 gc iv, asserting that hostages are nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces.85 Moreover, the Trial Chamber referred to the Commentary on Article 34 gc iv in stating that ‘the term hostage must be understood in the broadest sense.’86 The Trial Chamber did not consider any other sources but added the element of achievement of an advantage in order to separate the war crime of hostage-​ taking from mere detention.87 The interpretations of the Blaškić Trial Chamber were confirmed in subsequent case law, in which the Pictet Commentary on gc iv was still extensively referred.88 With regard to forced displacement –​which may constitute a war crime as well as a crime against humanity89 –​the icty relied on the Pictet Commentaries in numerous cases to identify the conditions of an evacuation as a permitted exception to forcible transfer.90 In addition, the Commentaries were included in the discussions on the requirement of a mens rea element. 85

86 87 88

89 90

icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) paras. 186–​7, citing Pictet, Commentary gc iv, p. 229 (see also para. 158 where the Chamber with regard to the charge under Article 2 (h) icty Statute refers to Pictet, Commentary gc iv, pp. 600–​1 concerning the interpretation of Article 147 gc iv). icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 187. Ibid, para. 187 (see also para. 158 regarding the charge under Article 2 (h) icty Statute). See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 311–​3 (adopting the Pictet Commentary’s definition on Article 147 gc iv before referring to the Blaškić judgment for the additional element of achievement of an advantage); icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) paras. 638–​9. See Articles 2 (g) and 5 (h) icty Statute. icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) paras. 516–​9; icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​A (17 December 2003) para. 229 (the Krnojelac Trial Chamber adopted a wide definition of the term ‘forced’ based on the Pictet Commentary on Article 49 gc iv, see at para. 475); icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 556 (fn. 1424); icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) paras. 596–​7; icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) para. 166 (fn. 309); icty, Prosecutor v Popović et al. (Judgment) Case No it-​05-​88-​T (10 June 2010) paras. 901–​3; icty, Prosecutor v Tolimir (Judgment) Case No it-​05-​88/​2-​T (12 December 2012) para. 798.

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The Naletilic Trial Chamber deduced from the Commentary to gc iv that deportation and forcible transfer generally presupposes an intent that the transferred persons should not return.91 The Stakić Trial Chamber, as well as the Simić Trial Chamber, which highlighted how the Trial Chamber in Naletilic ‘interpreted’ the Commentary,92 agreed with the Naletilic Trial Chamber.93 However, the Stakić Appeals Chamber contradicted this jurisprudence. The Chamber observed that there is no established case law of the Tribunal on the question of a mens rea requirement and that the judgments in favour of the intention were based on the Commentary.94 Furthermore, first the Chamber emphasised that Article 49 gc iv ‘contains no suggestion that deportation requires an intent that the deportees should not return.’95 Second, it stated that [it] is concerned that care should be taken not to read too much into the Commentary on Geneva Convention iv, and finds that the Commentary to Article 49 in particular is primarily an attempt to distinguish ‘evacuation’, a form of removal permitted by the Convention which is by definition provisional, from the crimes of deportation and forcible transfer.96 In contrast, and almost simultaneously, Judge Schomburg, in his separate and partly dissenting opinion to the Appeals Chamber’s judgment in Naletilic, argued by reference to the Pictet Commentary on gc iv in favour of the intent requirement.97 After all, a consolidated case law has not developed in either direction. It is interesting, however, that the Commentaries are claimed by both positions. With regard to the war crime of extensive destruction and appropriation of property,98 the Pictet Commentary on gc iv was relied on to determine

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icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 520 (fn. 1362) (‘The Commentary to the Geneva Convention iv holds “[u]‌nlike deportation and forcible transfer, evacuation is a provisional measure”, p 280. The Chamber sees this as indicative of that deportation and forcible transfer are not by their nature provisional, which implies an intent that the transferred persons should not return.’ [Errors in this quote are corrected]). 92 icty, Prosecutor v Simiv et al. (Judgment) Case No it-​95-​9-​T (17 October 2003) para. 132. 93 icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​T (31 July 2003) paras. 686–​7. 94 icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) paras. 304–​5. 95 Ibid, para. 306. 96 Ibid. 97 icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​A (3 May 2006), separate and partly dissenting opinion of Judge Schomburg, para. 33. 98 See Article 2 (d) icty Statute.

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what kind of property is protected.99 Furthermore, in several decisions, the icty Chambers extensively consulted the Commentary on gc iv to define the notion of extensive destruction. In this regard, the Blaškić Trial Chamber relied solely on the Pictet Commentary on Article 147 gc iv, concluding that [a]‌n Occupying Power is prohibited from destroying movable and non-​ movable property except where such destruction is made absolutely necessary by military operations. To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton. The notion of ‘extensive’ is evaluated according to the facts of the case –​a single act, such as the destruction of a hospital, may suffice to characterise an offence under this count.100 This definition, which reflects the interpretations of the Commentary in a summarised form,101 was confirmed in subsequent case law of the icty.102 However, the Commentary was still extensively relied upon even after this.103 For instance, the Kordić Trial Chamber elaborated on detailed explanations beyond the definition from the Blaškić judgment, based on the Commentary.104 Furthermore, the Pictet Commentaries played an important role for interpretations regarding other war crimes or crimes against humanity, such as the

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icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) paras. 148–​ 9; icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 337 and also later at para. 347 citing again the Commentary to gc iv. See also icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 107; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 575. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 157. See Pictet, Commentary gc iv, p. 601. See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 340; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 576 (fn. 1438); icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 587; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) paras. 129–​30. See e.g. icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 576 (fn. 1438); icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​ 36-​T (1 September 2004) para. 587; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​ 04-​74-​T (29 May 2013) paras. 129–​30. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) paras. 335–​7.

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plunder of public or private property,105 torture,106 and outrages upon personal dignity.107 1.1.4 Deference to a Special Source The examples of the usage of the Pictet Commentaries in the jurisprudence of international courts and tribunals show that great weight was given to them with regard to various issues of ihl, as well as fundamental questions of international criminal law. In particular, the icty and the ictr made extensive use of the Pictet Commentaries in the beginning of their jurisprudence. At that time, many legal questions were unresolved and, except for the post-​Second World War jurisdiction, no case law existed.108 The Commentaries were almost the only sources relied on to specify the provisions of the Geneva Conventions, for which the tribunals, inter alia, adopted definitions,109 examples;110 and 105 icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) paras. 78–​9. See also icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 905; scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) para. 159; scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 206. 106 icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) para. 492. This approach was confirmed in subsequent case law, see e.g. icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23 & it-​96-​23/​1-​A (12 June 2002) para. 148; icty, Prosecutor v Kvočka et al. (Judgment) Case No it-​98-​30/​1-​T (2 November 2001), para. 139; icty, Prosecutor v Kvočka et al. (Judgment) Case No it-​98-​30/​ 1-​A (28 February 2005) para. 284; icty, Prosecutor v Limaj et al. (Judgment) Case No it-​03-​ 66-​T (30 November 2005) para. 240. 107 icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) paras. 49–​56. Inter alia, based on the Commentaries on Common Article 3, the Trial Chamber defined outrages upon personal dignity. This definition was confirmed in subsequent case law, see e.g. icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​ T (22 February 2001) para. 500 (with slight modifications); icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) para. 26. See also scsl, Prosecutor vs Brima et al. (Judgment) Case No scsl-​04-​16-​T (20 June 2007) para. 715. 108 N. Stappert, ‘Practice Theory and Change in International Law: Theorizing the Development of Legal Meaning Through the Interpretive Practices of International Criminal Courts’ (2020) 12(1) International Theory 33–​58 at. 42–​3; Stappert, ‘A New Influence of Legal Scholars?’, 974. 109 See e.g. icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) paras. 209, 253–​8; icty, Prosecutor v Simić et al. (Judgment) Case No it-​95-​ 9-​T (17 October 2003) paras. 89, 92; icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​ 14-​A (29 July 2004) para. 597; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) paras. 159-​64; icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) para. 151. 110 See e.g. icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 125 (fn. 250).

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information about the purpose111 and the circumstances at the time of conclusion of the Geneva Conventions112 from the Commentaries. Often, the tribunals started their inquiries of the law by means of the Pictet Commentaries.113 It is evident that great weight has been given to the Commentaries in the jurisprudence of international courts and tribunals from the fact that the Commentaries were cited in order to induce acceptance for the ad hoc tribunals’ decisions.114 This is indicated by the references to the Commentaries for the extensive interpretations of the Geneva Conventions, such as the concept of protected persons in Article 4 gc iv,115 the extension of the tribunals’ own jurisdiction116 and the ascertainment of rules of customary 111 For instance, when the Tadić Appeals Chamber established the overall control test based on Article 4 (2) gc iii and the spirit of the Geneva Conventions the Chamber exclusively referred to the Pictet Commentary on Article 29 gc iv, see icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​A (15 July 1999) paras. 95–​6 (fn. 116). See also icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) paras. 81 (fn. 89), 373; icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​T (30 June 2006) para. 254; icty, Prosecutor v Mrkic et al. (Judgment) Case No it-​95-​13/​1-​T (27 September 2007) para. 455 (fn. 1703); icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​ T (10 July 2008) paras. 153, 197; ictr, Prosecutor v Akayesu (Appeal Judgment) Case No ictr-​96-​4-​A (1 June 2001) paras. 437, 440–​2; scsl, Prosecutor vs Brima et al. (Judgment) Case No scsl-​04-​16-​T (20 June 2007) para. 715. 112 See e.g. ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​1-​T (21 May 1999) paras. 161–​5; icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) paras. 571, 596 (fn. 1966); icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) para. 125; icty, Prosecutor v Stanišić and Župljanin (Judgment) Case No it-​08-​91-​T (27 March 2013) para. 32. See also icj, Jurisdictional Immunities of the State (Germany v Italy), Counter-​Claim, Order of 6 July 2010, icj Rep 2010, p. 310, Dissenting Opinion of Judge Cançado Trindade, p. 329, para. 148. 113 See e.g. icty, Prosecutor v Vasiljević (Judgment) Case No it-​98-​32-​T (29 November 2002) para. 223; ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​ 95-​1-​T (21 May 1999) paras. 161–​5. 114 In this context, cf. S. Manley, ‘Citation Practices of the International Criminal Court: The Situation in Darfur, Sudan’ (2017) 30(4) ljil 1003–​26 at 1004. 115 See in this Chapter, at 1.1.2. See also icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 105. The icty has seemingly toyed with the idea of extending the prisoner of war category to non-​international armed conflicts, see in particular with reference to the Pictet Commentaries icty, Prosecutor v Mrkšić and Šljivančanin (Judgment) Case No it-​95-​13/​1-​A (5 May 2009) paras. 70–​2; repeated by Judge Meron in icty, Prosecutor v Šljivančanin (Review Judgment) Case No it-​95-​13/​l-​R.1 (8 December 2010) separate opinion of Judge Meron, para. 2 (who emphasised that the Mrkšić and Šljivančanin Appeals Chamber quoted the Pictet Commentaries). 116 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) paras. 132, 166–​7. See also icty, Prosecutor v Hadzihasanovic et al. (Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility)

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ihl.117 In academia, the tribunals were repeatedly criticised for not applying the law as it exists but creating new law.118 It is likely that the emotional language of the Commentaries was frequently quoted by the tribunals to hide the creation of new law.119 The later citation practice of the tribunals also indicate that great weight was given to the Commentaries: Although the use of the Pictet Commentaries in the jurisprudence of the international criminal tribunals declined over time due to the rapid development of international criminal law,120 and established case law and new special commentaries on

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Case No it-​01-​47-​a r72 (16 July 2003) para. 15–​6; icty, Prosecutor v Mrkšić and Šljivančanin (Judgment) Case No it-​95-​13/​1-​A (5 May 2009) para. 72. On the basis of the Commentaries, in particular the customary nature of Common Article 3 applicable in international armed conflicts was ascertained, see e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 300; icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) para. 167; icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) paras. 143–​ 9; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) para. 42. This observation was also made by B. Schlütter, Developments in Customary International Law: Theory and the Practice of the International Court of Justice and the International Ad Hoc Criminal Tribunals for Rwanda and Yugoslavia (Martinus Nijhoff Publishers, 2010), p. 276. Note, however, that to the contrary, the Commentaries state that Common Article 3 is only applicable to non-​international armed conflicts, see Pictet, Commentary gc i, p. 48. Stappert, ‘Practice Theory and Change in International Law’, 52. See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) para. 687; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 25; icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) para. 88; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) paras. 42, 47 (fn. 80); icty, Prosecutor v Đorđević (Judgment) Case No it-​ 05-​87/​1-​T (23 February 2011) para. 1525 (fn. 5766); icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) paras. 101, 159; ictr, Prosecutor v Akayesu (Appeal Judgment) Case No ictr-​96-​4-​A (1 June 2001) paras. 441, 443; ictr, Prosecutor v Semanza (Judgment) Case No ictr-​97-​20-​T (15 May 2003) para. 355. See also the citation of the Commentaries in proceedings of the International Court of Justice by the judges in their separate and dissenting opinions: icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment icj Rep 2002, p.3, Separate Opinion of Judge Bula-​ Bula, p. 100, paras. 66, 69; icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, icj Rep 2005, p. 168, Separate Opinion of Judge Simma, p. 334, paras. 34, 39; icj, Jurisdictional Immunities of the State (Germany v Italy), Counter-​Claim, Order of 6 July 2010, icj Rep 2010, p. 310, Dissenting Opinion of Judge Cançado Trindade, p. 329, para. 148. Cf. Stappert, ‘Practice Theory and Change in International Law’, 42–​3 (‘significant legal developments occurred during the first years following the establishment of the ad hoc Tribunals … As a legal officer at the ictr claimed, “[i]‌n the early days, … it was a whole development of a whole new system”’).

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international criminal law became the primary source of reference,121 the Pictet Commentaries were still referred to in addition to case law,122 the Geneva Conventions and the Additional Protocols.123 This can even be observed for the citation practice of the International Criminal Court,124 which mostly cites specialised sources.125 This is significant, as Stewart Manley notes, because the citation of an authority by a court may impact the citation practice of future courts.126 It is also striking that explicit deviations from the Commentaries have rarely been made.127 Throughout the jurisprudence of international courts and tribunals only two explicit statements exist that critically dealt with the use of the Commentaries. In Milošević, the icty declared that ‘the Trial Chamber observes that the icrc Commentary is nothing more than what it purports to be, i.e., a commentary, and only has persuasive value’.128 However, this statement followed an objection by the amici curiae, which, based on the Pictet Commentary on Common Article 3, questioned the Tadić criteria for the determination of a non-​international armed conflict.129 Subsequently, the Trial 1 21 Ibid, p. 53. 122 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) paras. 327–​ 30; icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​ T (1 September 2004) para. 592 (fn. 1499); icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 42; icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​T (30 June 2006) para. 254; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) para. 47 (fn. 80); icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​A (17 July 2008) para. 178; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 67 (fn. 112) and 114 (fn. 210); ictr, Prosecutor v Setako (Judgment) Case No ictr-​04-​81-​A (28 September 2011) para. 260 (fn. 596). 123 icty, Prosecutor v Popović et al. (Judgment) Case No it-​05-​88-​T (10 June 2010) para. 901 (fn. 3097); icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​A (29 November 2017) paras. 303 (fn. 920-​921), 346 (fn. 1062), and 358 (fn. 1100). 124 See e.g. icc, Prosecutor v Bemba Gombo (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges) Case No icc-​01/​05-​01/​08 (15 June 2009) para. 495; icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​ 01/​07-​3436 (7 March 2014) para. 905 (fn. 2133). 125 Manley, ‘Citation Practices of the International Criminal Court’, 1025–​6. 126 In this contest, see ibid, p. 1004. 127 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 472 (relying on the customary law definition of torture based on the Torture Convention instead of the definition suggested by the Commentary to gc iv). 128 icty, Prosecutor v Milošević (Decision on monitoring for judgment of acquittal) Case No it-​02-​54-​T (16.6.2004) para. 19; repeated in icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​T (10.7.2008) para. 176 (fn. 711). 129 icty, Prosecutor v Milošević (Decision on monitoring for judgment of acquittal) Case No it-​02-​54-​T (16.6.2004) para. 19.

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Chamber endeavoured to prove that the Pictet Commentary does not contradict the Tadić criteria.130 This engagement with a contestation of its decision –​ which had been made on the basis of the Pictet Commentaries –​indicates that the Trial Chamber accepted the Commentaries as an authority on the interpretation of the Geneva Conventions. If it was not an authoritative text in the view of the Chamber, it would not have had to demonstrate that there was no contradiction. In his separate opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Judge Pieter Kooijmans argued against the assumption that Common Article 1 of the Geneva Convention and Article 1 ap i contain obligations of state parties to ensure compliance with ihl by third states. In doing so, he briefly referred to the legal weight of the Commentaries, which seemed to have played a role in the Court’s deliberations: Now it is true that already from an early moment the International Committee of the Red Cross in its (non-​authoritative) commentaries on the 1949 Convention has taken the position that common Article 1 contains an obligation for all States parties to ensure respect by other States parties.131 This very rare, and also very cautious, criticism of the Pictet Commentaries demonstrates that the Commentaries have generally been met with deference, which is also suggested by the references to the Commentaries as authoritative,132 official commentaries,133 authorised 1 30 Ibid. 131 icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Rep 2004, p. 136, Separate Opinion Judge Kooijmans, p. 233, para. 48 [emphasis added]. In contrast, two years before, Judge Kooijmans had described the Pictet Commentaries in a joint separate Opinion as ‘authoritative’, see icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, icj Rep 2002, 3, p. 63, para. 31. 132 icty, Prosecutor v Hadzihasanovic et al. (Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility) Case No it-​01-​47-​a r72 (16 July 2003) para. 15; icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​A (15 July 1999) para. 93; Inter-​American Commission for Human Rights, Juan Carlos Abella v Argentina, Case No 11.137, Report No 55/​97oea/​Ser.L/​v /​i i.98 doc. 6 rev. (1997) para. 152; icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, icj Rep 2002, 3, p. 63, para. 31. 133 icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) para. 166 (fn. 309). See also icc, Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an

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interpretation134 or the accompanying commentary.135 In addition, they were usually listed under the rubric of (legal) authority136 or international legal instruments.137 Moreover, the rare criticism of the Commentaries implies that the accuracy of the Commentaries was generally assumed, although their underlying methodology could be seen as outdated. An indicator of this is the frequent reference to the Commentaries instead of the travaux préparatoires.138 The Pictet Commentaries were not only specially designated, but the way in which they were used shows that they were indeed perceived as something special, distinguishing them from other supplementary sources. The Commentaries have been used as a reference point for assessing the legal situation tantamount to the Geneva Conventions,139 and have been used and interpreted comparably to treaties.140

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investigation) Case No icc-​01/​13-​34 (16 July 2015) Partly Dissenting Opinion of Judge Péter Kovács, para. 40. icj, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), icj Rep 2002, p. 3, Separate Opinion of Judge Bula-​Bula, p. 100, para. 66. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 186. See e.g. icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009), Annex B; icty, Prosecutor v Stanišić and Župljanin (Judgment) Case No it-​08-​91-​T (27 March 2013) Annex iii; scsl, Prosecutor v Fofana and Kondewa (Judgment) scsl-​04-​ 14-​T (2 August 2007) Annex G; scsl, Prosecutor v Sesay et al. (Judgment) scsl-​04-​15-​T (2 March 2009) Annex E. See e.g. scsl, Prosecutor v Fofana and Kondewa (Judgment) scsl-​04-​14-​A (28 May 2008) Annex B. See e.g. ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​1-​T (21 May 1999) paras. 161–​5; icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​ 1-​T (25 June 1999) para. 49; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 34 (fn. 76); icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) para. 531 (fn. 1300); icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​T (15 March 2002) para. 475 (fn. 1434); icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​A (17 December 2003) para. 229; icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 519 (fn. 1357); icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 34 (fn. 76); icty, Prosecutor v Limaj et al. (Judgment) Case No it-​ 03-​66-​T (30 November 2005) paras. 85–​6. See e.g. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 189 (concluding that the Trial Chamber’s analysis is ‘consonant both with the pragmatic considerations suggested by the Commentary to Geneva Convention iv and with the object and purpose of Article 4 of Geneva Convention iv’). See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 522; icty, Prosecutor v Tihomir Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 189; icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 244 (‘In interpreting this Commentary, the Chamber agrees with the findings of the Trial Chamber in Celebici’); icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 258 (‘the Chamber interprets this

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1.2 Broad Acceptance in State Practice It is necessary to consider the extent to which the Commentaries have been drawn upon as authoritative (or not) within state practice to develop a holistic sense of their authority. This leads to the question: Is the weight given to the Commentaries in state practice comparably high to the weight given to the Commentaries in the jurisprudence of international courts? This is answered through examining military manuals and other examples of state practice, such as their pleas before the International Court of Justice and domestic court decisions. 1.2.1 Military Manuals The US Department of Defence (DoD) Manual and the UK Ministry of Defence (MoD) Manual are particularly informative about the use of the Pictet Commentaries since they provide far-​reaching instructions and fully disclose their sources. Other military manuals provide only simple instructions and/​or do not make citations at all,141 or almost exclusively cite certain categories of sources.142 Like the decisions of international courts and tribunals, the DoD Manual and the MoD Manual adopt definitions –​such as the definition of armed conflict143 –​as well as examples from the Commentaries.144 Both manuals refer to

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Article and the related Commentary’) and para. 520 (fn. 1362); icty, Prosecutor v Limaj et al. (Judgment) Case No it-​03-​66-​T (30 November 2005) para. 223; icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) paras. 306–​7. In some instances, prosecution and defence even oppositely based their arguments on one and the same statement of the Commentaries, see e.g. Prosecutor v Stanišić and Župljanin (Judgment) Case No it-​08-​91-​A (30 June 2016) paras. 874, 876. See also icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 584 (fn. 1487), where the Trial chamber pointed out that the Pictet Commentaries do not provide a definition. E.g., Rèpublique du Mali, Ministère de la Dèfense et des Anciens Combattants, Etat Major Général des Armées, Manuel du dca. E.g., the military manuals of New Zealand (New Zealand Defence Force, Manual of Armed Forces Law: Volume 4: Law of Armed Conflict (2017)) Denmark (Danish Ministry of Defence, Military Manual: on international law relevant to Danish armed forces in international operations (2016) (referring to the Pictet Commentaries only at pp. 489 and 606)), Colombia (Comando General de las Fuerzas Militares, Manual De Derecho Operacional Para Las Fuerzas Militares (República de Colombia, Bogotá, 2015) (referring to the Pictet Commentaries only at para. 2.1.3.1)), or Peru (Perú Ministerio de Defensa, Manual para las Fuerzas Armadas: derechos humanos, derecho internacional humanitario (Lima, 2010) (referring to the Pictet Commentaries only at pp. 255 and 280)) almost exclusively cite treaties, case law and outputs by experts that have recently been published on specific topics, including the Study and the Guidance. See e.g. UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict (oup, 2005), para. 3.3 (definition of armed conflict), 9.55; Office of General Counsel Department of Defense, Department of Defense Law of War Manual (Washington, 2015 (updated 2016)), paras. 3.5.2.1, 3.4.2.2 (definition of armed conflict) paras. 4.1.1.1, 7.3.1.1. See e.g. UK Ministry of Defence, MoD Manual, para. 8.155; Office of General Counsel Department of Defense, DoD Manual, paras. 7.6.1, 7.10.3.

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the Commentaries for detailed interpretations. For example, interpretations regarding requirements for military medical and religious status,145 internee correspondence and relief shipments,146 prisoner of war status147 and the criteria for determining the existence of a non-​international armed conflict were drawn upon from the Commentaries.148 In particular, the DoD Manual refers not only to the interpretations of the Commentaries but quotes entire passages in its footnotes, using the Pictet Commentaries on the Geneva Conventions as commentaries on the DoD Manual’s own instructions. Furthermore, both Manuals refer to the Commentaries when explaining the purpose,149 the historical background,150 or the travaux préparatoires of the Geneva Conventions.151 In both Manuals, mention is mostly made only to the Commentaries, without further references. Occasionally, the Commentaries are quoted along with the Geneva Conventions or the Additional Protocols,152 decisions of international courts and tribunals,153 the Final Records of the 1949 Diplomatic Conference,154 or academic works.155 This implies that it is generally assumed that the Commentaries, despite their age, are sufficient as evidence for the positions adopted by both Manuals. Although, in total, the DoD Manual refers to the Commentaries in 6615 footnotes only 222 times (3,36%), and the MoD Manual only 19 times in 2274 footnotes (0,84%); the authors of the Manuals seem to give the Commentaries esteemed status. The MoD Manual, for instance, places the Commentaries in a footnote on the same level as the Final Records of the 1949 Diplomatic Conference.156 Regarding the DoD Manual, the Commentaries do not only fall under the general appreciation ‘sound legal positions’ for the sources used

1 45 146 147 148 149 150 151 152 153 1 54 155 156

Office of General Counsel Department of Defense, DoD Manual, para. 4.9.2. Ibid, para. 10.23. UK Ministry of Defence, MoD Manua, paras. 8.119.1 and 8.170.1. Ibid, para. 15.3.1; Office of General Counsel Department of Defense, DoD Manual, para. 3.4.2.2 see also para. 17.2.2.4. See e.g. Office of General Counsel Department of Defense, DoD Manual, paras. 5.10.4, 11.20.1.5. See e.g. UK Ministry of Defence, MoD Manual, para. 16.11.1; Office of General Counsel Department of Defense, DoD Manual, paras. 7.9.5.8, 10.10.3. See e.g. Office of General Counsel Department of Defense, DoD Manual, paras. 3.4.2.2, 4.9.2, 9.24.2.1. See e.g. UK Ministry of Defence, MoD Manual, paras. 11.8, 11.20, 11.21; Office of General Counsel Department of Defense, DoD Manual, paras. 7.15.1.1, 7.15.3.2, 10.28.6.4. See e.g. UK Ministry of Defence, MoD Manual, para. 15.3.2; Office of General Counsel Department of Defense, DoD Manual, paras. 9.5.2.4. See e.g. Office of General Counsel Department of Defense, DoD Manual, para. 7.12.5. See e.g. ibid, para. 7.15.2.1. UK Ministry of Defence, MoD Manual, para. 8.64 (fn. 200) (‘The reference to offices of destination is not explained in the Final Record of the 1949 Diplomatic Conference, nor in the Pictet Commentary’).

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by the US Department of Defence,157 but the Manual also specifically highlights the significance of the Pictet Commentaries. This demonstrates that the Commentaries probably played a greater role in the genesis of the Manual than the number of citations suggests: The Commentaries to the 1949 Geneva Conventions, published by the International Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been helpful in understanding the provisions of the 1949 Geneva Conventions and have often been cited in this manual. As noted by the International Committee of the Red Cross, however, these Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only participant States would be qualified to give.158 In its second sentence, the above remark also shows that the US Department of Defence felt the need to clarify the legal status of the Commentaries, possibly being aware that the Commentaries receive a very high status in legal discourse similar to binding law. In this way, the US Department of Defence conceivably seeks to prevent interpretations of the Commentaries that contradict the DoD Manual from being set against it.159 While the Commentaries are given an esteemed status in the DoD Manual and the MoD Manual, the new French military manual published in 2022 only quotes the Pictet Commentary on gc iv, and only three times.160 Instead, the French military manual cites the new Commentary on gc i several times. However, because it also contains many references to the ap Commentary, which has not yet been updated, the manual’s citation practice implies that, in the future, the Pictet Commentaries will only play a minor role in military manuals. 1.2.2 Other State Practice The Pictet Commentaries served as a point of reference in various other fields of states’ legal practice. For instance, in pleadings before the International 1 57 Office of General Counsel Department of Defense, DoD Manual, p. 5. 158 Ibid, para. 19.16. 159 See also ibid, para. 1.2.2.1 (stating that ‘[c]‌itation to a particular source should not be interpreted to mean that the cited source represents an official DoD position, or to be an endorsement of the source in its entirety. For example, parts of a source, such as … a commentary published by the International Committee of the Red Cross, may reflect the DoD legal interpretation, while other parts of the source may not’). 160 Ministère des Armées de la République Française, Manuel de droit des operations militaires (2022), pp. 83 (fn. 183) 176 (fn. 624), 182 (fn. 644).

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Court of Justice, states’ governments relied on the Pictet Commentaries for interpretations of the Geneva Conventions, including the prisoner of war status,161 occupation,162 and the question of whether individual rights for compensation for breaches of the Geneva Conventions exist.163 Likewise, national courts –​for instance, in the US,164 UK,165 Israel,166 and Hungary167 –​attributed great importance to the Pictet Commentaries in their decisions. Illustratively, in Hamdan v Rumsfeld, the US Supreme Court held that the icrc 161 Statement by Mr. Kharas on behalf of the government of Pakistan, Oral Arguments, Minutes of the Public Sitting (4–​6 June 1973) held on Trial of Pakistani Prisoners of War (Pakistan v India) accessed 31 August 2023, p. 29. 162 Written Statement submitted by Palestine (30 January 2004) regarding Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory accessed 31 August 2023, para. 357 and Annex 12 quoting from Yehezkel Lein, Land Grab: Israel’s Settlement Policy in the West Bank (B’Tselem, 2002), p. 38. 163 Reply of the Federal Republic of Germany (5 October 2010) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, p. 23; Salvatore Zappalà on behalf of the government of Italy, Public sitting, cr 2011/​18 (13 September 2011) held on Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, pp. 34–​5. 164 Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 2006, 548 U.S. 557, pp. 56, 64–​6, 68, 69; District Court (Southern District of Florida), United States v Noriega, 746 F. Supp. 1506 (1990) p. 1528; District Court (Southern District of Florida), United States v Noriega, 808 F. Supp. 791 (1992) p. 795 (fn. 6) (‘For all of its efforts to downplay the persuasive value of the Commentary when invoked by Noriega, the government itself has cited to the Commentary when favorable to its position’), see also pp. 796, 799–​802. 165 Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 para. 171 (‘the icrc[’s] commentaries have been recognised as particularly valuable in this area. Although not authoritative in the sense of being binding, the views of the icrc have been very influential, given its role in the development of international humanitarian law and the initiatives it has taken’), see also paras. 178–​9, 181; Haidar Ali Hussein v Secretary of State for Defence [2013] ewhc 95, para. 33 (‘The court has been referred to the commentaries on the Convention by Jean Pictet which have long been regarded as a valuable source for determining the correct construction of the various Conventions’); Haidar Ali Hussein v Secretary of State for Defence [2014] ewca Civ 1087, paras. 36–​40, 43, 47. 166 Supreme Court sitting as the High Court of Justice, Adalah –​The Legal Center for Arab Minority Rights in Israel et al. v goc Central Command, idf et al., Judgment of 23 June 2005, hcj 3799/​02, para. 21. 167 Legfelsőbb Bíróság [Hungarian Supreme Court] No x. 713/​1999/​3, 28 June 1999. For a translation of the relevant parts of this decision, see T. Hoffman, ‘Trying Communism through

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is the body that drafted and published the official commentary to the Conventions. Though not binding law, the commentary is, as the parties recognize, relevant in interpreting the Conventions’ provisions.168 In the case of United States of America v Manuel Antonio Noriega, by rejecting the defendant’s argument, which was based on the Pictet Commentaries, Judge Hoeveler considered it necessary to clarify the legal status of the Commentaries: The genesis of Defendants argument is not in the language of the Convention, but rather is found in the Red Cross Commentary … First, it must be underscored that the Red Cross Commentary is merely a discussion suggesting what the author believes should or should not be done as a matter of policy; the Commentary is not part of the treaty.169 Nevertheless, Judge Hoeveler tried to demonstrate that the Commentary does not support the defendant’s argumentation.170 As was the case with the icty Trial Chamber in Tadić,171 Judge Hoeveler’s efforts to demonstrate that the Commentary does not support the defendant’s argumentation indicate that he accepted the Commentaries as an authority on the interpretation of the Geneva Conventions and that it was important to him that his decision does not contradict them. Overall, as already observed for the jurisprudence of international courts and tribunals, in state practice, the Commentaries were introduced as authoritative,172 particularly valuable,173 the official commentaries,174 the

168 169 1 70 171 172

1 73 174

International Criminal Law? The Experiences of the Hungarian Historical Justice Trials’, in K. J. Heller and G. Simpson (eds.), The Hidden Histories of War Crimes Trials (oup, 2013), p. 241. US Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 2006, 548 U.S. 557, p. 56 (fn. 48) [emphasis added], cf. also p. 68. District Court (Southern District of Florida), United States v Noriega, 746 F. Supp. 1506 (1990) p. 1228. Ibid, p. 1228. See in this Chapter, at 1.1.4. Salvatore Zappalà on behalf of the government of Italy, Public sitting, cr 2011/​18 (13 September 2011) held on Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)  accessed 31 August 2023, pp. 34–​5. Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 paras. 171. Reply of the Federal Republic of Germany (5 October 2010) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, p. 23.

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accompanying commentary,175 or the most accepted interpretation.176 The Commentaries were referred to for the purpose of the Geneva Conventions177 or instead of the travaux préparatoires178 and their emotional language was used to support the legal reasoning.179 The Marks of the Pictet Commentaries’ Authority 1.3 The analysis of the acceptance of the Pictet Commentaries in the jurisprudence of international courts and tribunals, as well as in state practice, has demonstrated that the Commentaries were given great weight in legal practice for the determination of rules of ihl as well as international criminal law. Based on this analysis and findings from academia, this section studies the marks of the Commentaries’ authority. However, the marks of authority are based only on a presumption, which is substantiated by the way the Commentaries are used. In individual cases, one mark of authority may be more decisive than another.180 1.3.1 Unique Expertise The Pictet Commentaries are mostly based on the discussions of the preparatory conferences to the Geneva Conventions in which the authors of the Commentaries participated.181 As such, it can be assumed that they contain the knowledge about the original will of the state parties to the Geneva 175 US Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 2006, 548 U.S. 557, pp. 68–​9. 176 Written Statement submitted by Palestine (30 January 2004) regarding Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory accessed 31 August 2023, Annex 12, p. 38, quoting from Yehezkel Lein, Land Grab: Israel’s Settlement Policy in the West Bank (B’Tselem, 2002). 177 See e.g. US District Court (Southern District of Florida), United States v Noriega, 808 F. Supp. 791 (1992) p. 799. 178 See e.g. ibid, p. 796. 179 See e.g. Salvatore Zappalà on behalf of the government of Italy, Public sitting, cr 2011/​18 (13 September 2011) held on Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)  accessed 31 August 2023, pp. 34–​ 5 (‘The authoritative Pictet Commentary affirms that “it would seem unjust for individuals to be punished while the State in whose name or on whose instructions they acted was released from all liability”.’); Supreme Court sitting as the High Court of Justice, Adalah –​The Legal Center for Arab Minority Rights in Israel et al. v goc Central Command, idf et al., Judgment of 23 June 2005, hcj 3799/​02, para. 21 (‘Pictet correctly noted that the use of people as a “human shield” is a “cruel and barbaric” act’). 180 On the marks of authority, see Chapter 1, at 1. 181 See above note 2.

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Conventions. The analysis of legal practice showed that the Commentaries have indeed often been referred to in place of the travaux préparatoires. In addition, the icrc –​including the Commentaries’ authors –​initiated the Conferences that led to the Geneva Conventions and prepared the drafts for the Conventions.182 They knew of the difficulties involved in establishing the Conventions and where the Conventions fell short. The Commentaries preserve this knowledge. They also preserve the experience of the icrc in the field until 1949, especially during Second Word War, i.e. knowledge about the application of the law in action. The analysis of the Commentaries’ acceptance in legal practice showed that this knowledge was used particularly by the ad hoc tribunals to specify the rules of the Geneva Conventions. Due to a lack of alternatives, the expertise of the Commentaries was unique for a long period with regard to both ihl as well as fundamental questions about international criminal law. This is reflected in the frequent use of the Pictet Commentaries (compared to pure academic writings) by the icty and ictr particularly in the beginning of their jurisprudence.183 The Commentaries have been given less and less consideration for questions of international criminal law due to the development of case law and specialised commentaries for international criminal law over time. However, the Commentaries have remained a main reference for questions of ihl –​evident, for example, by the MoD Manual and the DoD Manual’s use of the Commentaries. The first ‘commentary’ to the Geneva Conventions, after the Pictet Commentaries, was published only in 2015. However, this commentary,184 which was initiated by 182 Heinsch, ‘The International Committee of the Red Cross and the Geneva Conventions of 1949’; G. Best, ‘Making the Geneva Conventions of 1949: The view from Whitehall’, in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​Rouge (Martinus Nijhoff Publishers, 1984); F. Bugnion, ‘The Geneva Conventions of 12 August 1949: from the 1949 Diplomatic Conference to the dawn of the new millenium’ (2000) 76(1) International Affairs 41–​50 at 41–​3. 183 Cf. M. Bohlander, ‘The Influence of Academic Research on the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia: A First Overview’ (2003) 3(1) Global Community Yearbook of International Law and Jurisprudence 195–​209 at 208 (stating that ‘the influence of academic writing on the everyday jurisprudence of the icty may be classified as being rather marginal. Based on my overall impressions of the situation at the ictr I feel that I can risk the statement that things will not be different there’). According to Bohlander, in the icty jurisprudence until 2003, in 21.781 footnotes, only 420 academic resources were cited compared to 1,965 other resources and 2,385 legal resources (13,7% references to academic resources). But see also Stahn, ‘The icrc and the Development of International Criminal Law’, 161 (who concludes that ‘there are relatively few cases in which icct s relied expressly on findings of the icrc as authority or evidence. But there are some examples’). 184 A. Clapham and others (eds.), The 1949 Geneva Conventions: A commentary (oup, 2015).

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the Geneva Academy, more closely resembles a handbook than a commentary because it is thematically structured and does not include a rule-​by-​rule survey.185 Accordingly, the Pictet Commentaries remained the only rule-​by-​ rule commentary until recently, when the icrc released its first three new Commentaries on the Geneva Conventions in 2016, 2017 and 2020 as part of an updating process. The need to update the Pictet Commentaries implies that the Commentaries have been losing relevance in legal discourse as they hardly provide expertise on challenges facing ihl that have occurred since their publications between 1952 and 1960.186 The designation of the new icrc Commentaries as ‘second edition’ implies that the Pictet Commentaries as ‘first edition’ have been revised and are partly outdated. The decision of the Delalić Appeals Chamber regarding the nationality requirement in Article 4 (1) gc iv, as discussed above,187 also suggests that the Commentaries are considered outdated. Possibly, the publications of the new icrc Commentaries will accelerate the Pictet Commentaries’ loss of relevance through their updated applicability in response to more current ihl challenges. On the other hand, before the publication of the new Commentaries, the Pictet Commentaries were still extensively used in legal practice and academia, including, for instance, the Tallinn Manual on the Applicable Law on Cyberwarfare.188 Moreover, the decision of the International Criminal Court in Ntaganda illustrates that in future decisions and discourses the Pictet Commentaries could be consulted, by reason of expertise, to validate the new

185 Cf. the definition by D. Kästle-​Lamparter, Welt der Kommentare: Struktur, Funktion und Stellenwert juristischer Kommentare in Geschichte und Gegenwart (Mohr Siebeck, 2016), p. 9 (defining commentaries as any text that structurally follows another text and consecutively explains this text); Petrov, Expert Laws of Wars, pp. 77–​8. 186 At the launch of the new Commentary on gc iii, Jean-​Marie Henckaerts –​head of the icrc project to update the Commentaries on the 1949 Geneva Conventions and the Additional Protocols of 1977 –​described the Pictet Commentaries as incomplete and outdated, see accessed 31 August 2023. See also Sean D Murphy, ‘Joint Series: The Role of the icrc Commentaries in Understanding International Humanitarian Law: Episode i, Part ii’, Intercross, 7 July 2016 (‘Decades later, the Pictet commentaries remain of continuing value, yet are now even more dated’). See also M. Milanovic, ‘New icrc Commentary to the First Geneva Convention’, ejil: Talk!, 22 March 2016 (‘authoritative, but dated, commentaries edited by Jean Pictet’). 187 See in this Chapter, at 1.1.2. 188 M. N. Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare. See also Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’, 1553 (claiming that elements of the Pictet Commentaries ‘are still relevant’).

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Commentaries’ interpretations. After citing the new Commentary on gc i with regard to the question of whether armed forces benefit from the application of Common Article 3 by their own Party, the Court explicitly stated that the new Commentary’s approach ‘is consistent with the icrc’s previous commentaries’.189 The same can be observed in discussions of the new Commentaries in academia.190 The Pictet Commentaries thus may serve as a control for the ‘correctness’ of the new Commentaries. They can be used in discussion to reject positions of the new Commentaries. In this sense, it is possible that the Pictet Commentaries may remain a relevant source used to determine rules of ihl. Finally, the reiterated citations of the Pictet Commentaries by international courts and tribunals, despite established case law, imply that the Commentaries’ authority builds on marks of authority other than expertise, which indicates that the Commentaries may continue to play a role in future legal discourse.191 1.3.2 Institutional Authority of the icrc The icrc only commissioned and published the Pictet Commentaries, and expressly declared that the Commentaries are the personal work of their authors.192 Nevertheless, in legal practice and academia the Commentaries have often been designated as the icrc(’s official)193 Commentaries –​possibly due to the fact that the authors were icrc staff members and the visual appearance of the Commentaries.194 Against this background, the Pictet Commentaries benefit from the authority of the icrc –​and vice versa.195 In this regard, the assumption that the icrc is a special actor in international law 189 icc, Prosecutor v Ntaganda (Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) Case No icc-​01/​04-​02/​06-​1707 (4 January 2017) para. 50. 190 See e.g. N. W. Mull, ‘A Critique of the icrc’s Updated Commentary to the First Geneva Convention: Arming Medical Personnel and the Loss of Protected Status’ (2017) 45(3) Georgia Journal of International and Comparative Law 495–​511 at 499–​500, 503, 506–​7. 191 Cf. Sassòli, International Humanitarian Law, para. 4.68. 192 Pictet, Commentary gc i, p. 7. 193 See e.g. icty, Prosecutor v Milošević (Decision on motion for judgment of acquittal) Case No it-​02-​54-​T (16 June 2004) para. 19; Annexes to the Counter-​Memorial of Italy (14 December 2009) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, Annex 8, p. 26; M. N. Schmitt, ‘The Status of Opposition Fighters in a Non International Armed Conflict’ (2012) 88 ils 119–​144 at 122. 194 Cf. Sassòli, International Humanitarian Law, para. 4.66. 195 On the authority of the icrc, see Chapter 1. Cf. also Grignon, ‘Les Commentaires des Conventions de Genève Rédigés sous la Direction de Jean Pictet’, pp. 144–​8; Helmersen,

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plays a particular role as indicated by the designations of the Commentaries as ‘authority’, ‘authoritative’, ‘authorised’ or ‘official’ in legal practice and academia.196 In the Blaškić decision discussed above, the icty Appeals Chamber spoke of the ‘accompanying commentary’, which implies that the Chamber perceives the Conventions and the Commentaries as belonging together.197 1.3.3 Authorship: The Crucial Role of Jean Pictet The authors of the Pictet Commentaries were icrc staff members involved in the development of the Geneva Conventions, as noted above.198 Their expertise on ihl in general, and the Geneva Conventions in particular, was widely acknowledged. For instance, during the Geneva Conference, delegates expressly appreciated the expertise of the icrc staff members, who later became the authors of the Commentaries.199 In addition, due to the authors’ backgrounds as academics and legal professionals, the Commentaries have been attributed both to academia200 and legal practice.201 According to a study on the citation practice of international criminal courts and tribunals, the participation of legal practitioners is decisive for a legal view to be taken into account.202

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200 201 202

‘Finding “the Most Highly Qualified Publicists”’, 518–​9 (relating the reference to the Pictet Commentaries as ‘authoritative’ in the joint separate opinion of Judges Rosalyn Higgins, Pieter Kooijmans and Thomas Buergenthal in the Arrest Warrant case to the reputation of the icrc). For legal practice, see above notes 134 to 136. For academia, see e.g. J. L. Goldsmith, ‘“Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention’, Opinions of the Office of Legal Counsel, 18 March 2004, p. 54; Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda, pp. 99, 112. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 186. See above note 2. See e.g. the statement by the Turkish delegate, Mr. Tarhan, at the 35th plenary meeting at the 1949 diplomatic conference, Final Record of the Diplomatic Conference of Geneva of 1949, vol. ii, Section B, pp. 515–​6 (‘We are also most grateful to the International Committee for having placed their representatives at the disposal of the Conference. By their expert knowledge of the matter, they have greatly facilitated our work. In this connection I wish to offer special thanks to … Mr. Jean Pictet, Mr. Claude Pilloud, Mr. René Wilhelm and Mr. Frédéric Siordet’). icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​ 01/​04-​01/​10-​465-​Red (16 December 2011) para. 100. icc, Prosecutor v Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​04-​01/​06 (14 March 2012) para. 539. Stappert, ‘A New Influence of Legal Scholars?’, 978.

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Besides the expertise of the Commentaries’ authors, the prominence of Jean Pictet –​under whose direction the Commentaries were written –​plays a particular role in the Commentaries’ authority.203 Pictet was an international lawyer renowned in legal practice and academia.204 He was described as an ‘authority’ on ihl;205 ‘as the foremost jurist of the icrc and guiding force behind the Geneva Conventions of 1949 and their Additional Protocols of 1977.’206 He elaborated the fundamental principles of the Red Cross and Red Crescent –​which have contributed to the icrc’s authority –​and he has commented on them.207 In 1971, he became honorary vice-​president of the icrc.208 Today, an ihl competition for students is named after him –​further illustrating the esteemed reputation he holds in the field of ihl.209 His particular role in the Commentaries’ authority can, for instance, be seen from the fact that the

203 On the effect of the personality of an author to the authority of a legal view, such as the author’s distinctive reputation, cf. K. J. Heller, ‘Multi-​Blog Series: First Thoughts from Academia on the Updated gci Commentary: Episode i, Part iii’, Opinio Juris, 22 July 2016 (pointing out that ‘interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting’); Krisch, ‘Liquid authority in global governance’, 246 (pointing out that if an author holds a principal leadership in legal discourse, his or her views may be followed more voluntarily). 204 Cf. the diverse contributions on the life and achievements of Jean Pictet in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​ Rouge: En l’honneur de Jean Pictet (Martinus Nijhoff Publishers, 1984), e.g., D. Binschedler-​ Robert, ‘Préface’, p. xlviii (‘Peu nombreux sont à notre époque les juristes qui ont eu le destin exceptionnel de Jean Pictet’). 205 A. Hay, ‘Foreword’, in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​Rouge (Martinus Nijhoff Publishers, 1984), p. xlv. 206 A.-​M. de Zayas, ‘Book Review: Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet by Christophe Swinarski’ (1988) 82(2) ajil 416–​9 at 416. See also E. D. Fryer, ‘Book Review: Studies and Essays on International Humanitarian Law and Red Cross Principles in Honor of Jean Pictet by Christophe Swinarski’ (1986) 8(1) Human Rights Quarterly 126–​9 at 126 (stating inter alia that ‘[i]‌f artefacts of the human experience survive for the future archaeologist’s brush, Pictet’s words and the deeds they inspired should emerge as the nobler side of our pridefully mean civilization. The contributions of Pictet should be measured in this largest context’). 207 Pictet, Red Cross Principles. Pictet’s commentaries on the fundamental principles were published in a series of nine articles in the International Review of the Red Cross between 1979 and 1980, starting with J. S. Pictet, ‘The Fundamental Principles of the Red Cross: Commentary’ (1979) 19(210) irrc 130–​49. 208 Jean-​Pictet Competition, Jean Pictet: The greatest name in international humanitarian law accessed 31 August 2023. 209 Jean-​ Pictet Competition accessed 31 August 2023.

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Commentaries have been unofficially named after Pictet. In a public hearing before the International Court of Justice, shortly after the Commentaries’ publication, Pictet’s role in the 1949 Geneva Conference was emphasised before quoting the Commentaries on Common Article 3.210 1.3.4 Form The Pictet Commentaries’ form (as a commentary, as opposed to another type of legal source) has not been particularly emphasised in legal practice or in academia. However, in general, commentaries appear to have a higher status in legal practice than other legal views. Nora Stappert discovered in a study of the citation practices of international criminal courts and tribunals that, after icty case law and treaties, commentaries were most frequently cited. Furthermore, commentaries were cited much more frequently than, for instance, academic articles, monographs, domestic law and national case law.211 This may be due to the special form of the commentary. It is recognised that characteristics that commentaries like the Pictet Commentaries possess –​such as comprehensibility, convenience, clarity and accessibility –​may influence the way in which lawyers refer to a legal view.212 Moreover, before each interpretation of a provision of the Geneva Conventions, the Commentaries cite the respective provision in bold letters. Such references to legally binding rules may contribute to authority because they imply that the interpretations naturally follow from the rules.213 It can be assumed that the commentary form contributes to the Pictet Commentaries’ authority. 1.3.5 Tradition Initially, legal practitioners mostly relied on the Pictet Commentaries for reasons of unique expertise and the reputation of the icrc and the Commentaries’ authors. However, it can be observed that over time a tradition to draw on the

210 Case concerning Right of Passage over Indian Territory (Portugal v India), Oral Arguments concerning the merits and the preliminary objections joined to the merits, public hearings (21 September-​6 November 1959 and 12 April 1960) accessed 31 August 2023, pp. 554–​5 (‘ce commentaire est fait sous Ia direction de M. Jean Pictet, qui a joué un rôle considérable dans les travaux de la conférence de Genève et dans leur préparation’). 211 Stappert, ‘A New Influence of Legal Scholars?’, 972–​3. 212 Jansen, The making of legal authority, p. 109; D. D. Caron, ‘The ilc Articles on State Responsibility: The Paradoxical Relationship between Form and Authority’ (2002) 96(4) ajil 857–​73. Cf. also Franck, The Power of Legitimacy among Nations, pp. 50–​66. 213 Cf. Caron, ‘The ilc Articles on State Responsibility’, 866.

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Commentaries developed. A report by Hays W. Parks on his daily work as a lawyer at the US-​American Office of the Judge Advocate General of the Army, exemplifies this reliance on the Pictet Commentaries out of a sense of tradition: In the development of any legal advice regarding the 1949 gc, they are the first reference to which one resorts; and more than one meeting or discussion has been shortened by the question, ‘What does Pictet say about this’?214 Similarly, Sean D. Murphy reports on his work as a young lawyer at the US Department of State: The second work off the shelf was typically Jean Pictet’s four-​volume commentaries on the four 1949 Conventions, an insightful, albeit already somewhat dated, analysis of those treaties with a particular eye on their negotiating history. Being a relative novice to the field, I doubt I asked why the Pictet commentaries, published from 1952 to 1959, were relevant; they happened to be at hand, they seemed well-​crafted, and time was short to advise policy-​ makers on breaking developments with respect to treatment of prisoners, occupation of territory, and other matters.215 Moreover, the jurisprudence of the international courts and tribunals supports the observation of a reliance on the Commentaries out of tradition. Despite the development of established case law, the Pictet Commentaries remained a point of reference.216 Murphy’s remark on the obsolescence of the Commentaries leads to the assumption that the tradition of resorting to the Commentaries was able to develop mainly due to the lack of alternatives. Later, as a result of their long-​ time use, the Pictet Commentaries may have acquired a special position compared to upcoming alternatives, for example, as shown by the different

214 W. H. Parks, ‘Pictet’s Commentaries’, in C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-​Rouge (Martinus Nijhoff Publishers, 1984), p. 497. 215 Murphy, ‘Episode i, Part ii’. 216 Cf. Manley, ‘Citation Practices of the International Criminal Court’, 1004 (pointing out that the citation of an authority by a court may impact the citation practice of future courts).

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designations of the Pictet Commentaries and the Handbook of Humanitarian Law in Armed Conflicts217 in the Simić decision of the icty.218 Conclusion: Shaping the Content of the Geneva Conventions 1.4 The investigation of the Pictet Commentaries’ authority has shown that they enjoy a high authority,219 which is mainly based on five marks; namely: expertise, the institutional authority of the icrc, authorship, form and tradition. Despite the publication of the new icrc Commentaries as ‘second edition’, it is expected that the Pictet Commentaries will keep their authority in the future as evidence of the historical will of the parties and the circumstances of the time of conclusion of the Geneva Conventions; and as such serve as a control of the new Commentaries. What conclusions can be drawn from the Pictet Commentaries’ authority for ihl? On the one hand, the Pictet Commentaries have given relevance to the Geneva Conventions to serve as a legal basis to decide on issues of and, thus, to enforce ihl. The Conventions’ link to state consent is strengthened by the Commentaries’ interpretations being based, inter alia, on the travaux préparatoires and the circumstances at the time of the Geneva Conventions’ conclusion. Moreover, the Commentaries were regularly cited to provide information about the travaux préparatoires and the circumstances at the time of the Geneva Conventions’ conclusion, the evaluation of which would otherwise have been very time-​consuming. On the other hand, the Pictet Commentaries enjoyed a special status in legal practice. Despite the icrc’s lack of competence to issue binding interpretations, especially in the jurisprudence of international courts and tribunals, the Commentaries were almost elevated to primary sources of international law. This challenges the dichotomy between law and non-​law for the field of ihl and, to a lesser extent, for the field of international criminal law. The special note on the legal status of the Pictet Commentaries in the DoD Manual can be seen as an attempt to respond to this development. In addition, several of the Commentaries’ interpretations are based solely on humanitarian considerations, the spirit of the time after the Second World War –​which raises doubts about the interpretations’ ideological neutrality –​or no source for the interpretation is referenced. The lack of a consistent methodology for the interpretation of the Geneva Conventions makes it impossible to reconstruct 2 17 D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 2nd edn. (oup, 1999). 218 icty, Prosecutor v Simić et al. (Judgment) Case No it-​95-​9-​T (17 October 2003) para. 88. 219 Mohr and Policinski, ‘From the Gilded Age to the Digital Age’, 1913–​5, come the same conclusion.

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the origin of the interpretations. Many interpretations probably originate from the authors’ personal views than from state consent. The authority of the Commentaries helped these interpretations to gain acceptance in legal practice and academia and, thus, to shape the content of the rules of ihl. 2

Commentary on the Additional Protocols

Following the adoption of the two Additional Protocols to the Geneva Conventions in 1977, the icrc decided to instruct the writing of a commentary to these new treaties to ensure their proper understanding by those in charge of implementing or disseminating the Protocols,220 as well as legal scholars.221 The icrc asked nine legal experts from its staff to write this commentary on the Additional Protocols, which was eventually published in 1986 in French and one year later in English.222 Most of the ap Commentary’s authors had worked on the drafting of the Additional Protocols and had been involved in the negotiating processes in the work of the diplomatic conference as members of the icrc delegation.223 Jean Pictet was also involved in the writing process of the Commentary, but played a lesser role compared to the writing of the Commentaries on the Geneva Conventions.224 Pictet only presided over the Reading Committee,225 and wrote the general introduction to the Commentary.226 In addition, he was co-​author to the interpretations of a few articles of Additional Protocol i. The editors of the Commentary were Yves Sandoz, Christophe Swinarski and Bruno Zimmermann. As with the Pictet Commentaries, the icrc made an apparent attempt to establish its independence from the ap Commentary in terms of content. The Commentary’s foreword emphasises the academic freedom and responsibility

220 icrc, ‘Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (1986) 26(254) irrc 279–​80 at 280. 221 A. Hay, ‘Foreword’, in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers, 1987), p. xiii. 222 icrc, ‘Commentary on the Additional Protocols’, 279. 223 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv. 224 On Pictet’s role for the Commentaries to the Geneva Conventions, see in this Chapter, at 1.3.3. 225 Hay, ‘Foreword’, p. xiii. 226 J. S. Pictet, ‘General introduction’, in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers, 1987) pp. xxix-​xxxv.

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of the authors as well as the Commentary’s character as scholarly work.227 Likewise, the foreword stresses that the Commentary does not represent the views of the icrc, which merely acts as publisher to the Commentary.228 The diplomatic conference leading to the adoption of the Additional Protocols lasted for four years and were characterised by difficult and complex negotiations,229 resulting in loopholes and vague rules.230 The Commentary processes the discussions of the diplomatic conferences and, against this background, aims to address the loopholes and ambiguities left in the Protocols.231 Accordingly, the Commentary, for the most part, is based on the work of the diplomatic conference –​as is also explicitly pointed out in the editor’s note.232 In line with this, each section is preceded by a collection of references to the preparatory work of the diplomatic conference (‘Official Records’) and ‘other references’ representing ‘the most important documents for finding the origin of the texts which were finally adopted.’233 The interpretations mostly rely on the travaux préparatoires.234 In addition to the travaux préparatoires, interpretations are also based on the ordinary meaning,235 for which the Commentary frequently considers dictionaries,236 the systematology237 and the object and purpose of the Additional Protocols.238 It furthermore considers other

227 Hay, ‘Foreword’, p. xiii. See also Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv (‘strictly speaking, it is not a commentary of the icrc’). 228 Ibid. 229 See e.g. A. Alexander, ‘International Humanitarian Law, Postcolonialism and the 1977 Geneva Protocol I’ (2016) 17(1) Melbourne Journal of International Law 15–​50 at 18; Pictet, ‘General introduction’, pp. xxii–​x xxiii. 230 For instance, the draft for Additional Protocol ii was cut in half shortly before adoption, see M. Bothe, K. J. Partsch and W. A. Solf (eds.), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd edn. (Martinus Nijhoff Publishers, 2013), pp. 695–​706; S. S. Junod, ‘Additional Protocol ii: History and Scope’ (1983) 33(1) American University Law Review 29–​40 at 33.; Alexander, ‘A Short History of International Humanitarian Law’, 125. 231 Cf. also Fazal, Wars of Law, p. 30. 232 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv. Note also the structure of the Commentary regarding some articles which includes subsections titled ‘travaux préparatoires’, ‘the work of the Diplomatic Conference’, or ‘declarations of delegations during the Diplomatic Conference’. 233 Ibid, p. xxvi. 234 See e.g. ibid, paras. 1401, 1427–​39. 235 See e.g. ibid, paras. 58, 1402. 236 See e.g. ibid, paras. 1875 (fn. 13), 1879. 237 See e.g. ibid, paras. 1418, 1873. 238 See e.g. ibid, para. 1688.

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international law, in particular the Geneva Conventions,239 but also the vclt,240 the Charter of the United Nations241 and customary international law.242 The Commentary does not refer to state practice to the Additional Protocols, which is probably due to the low ratification status of the Protocols at the time of the Commentary’s publication.243 However, it takes into account state practice prior to the adoption of the Protocols.244 In addition, the Commentary cites scholarly writings,245 the Pictet Commentaries,246 the works of the International Law Commission247 and jurisprudence of the International Court of Justice.248 Moreover, the icrc drafts of the Additional Protocols and the commentaries thereon,249 as well as the authors’ own opinions, are referred to frequently.250 While the Commentaries do not provide a general introduction to the underlying methodology, a few references are made to the vclt’ rules on interpretation. For instance, it refers to Article 31 (2) vclt to emphasise the importance of the preamble,251 or to Article 31 (3) (c) vclt to highlight the role of international law for the interpretation of treaties.252 The next two sections examine to what extent the Commentary was relied on by international courts and tribunals, and in state practice, to examine the ap Commentary’s de facto authority for the determination of rules of ihl.

2 39 240 241 242 243 244 2 45 246 247 248 249 250 251 252

See e.g. ibid, para. 1872. See e.g. ibid, para. 1387 (fn. 11). See e.g. ibid, paras. 71–​3. See e.g. ibid, paras. 1852, 1863–​5. Until 1985, one year before the publication of the French version, only 53 states had become party to the Additional Protocols. See e.g. Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 419 (fn. 55, 57, 59 and 62). See e.g. ibid, paras. 1383, 1857 (fn. 35). See e.g. ibid, para. 49. See e.g. ibid, para. 1387. See e.g. ibid, para. 45 (fn. 11). See e.g. ibid, para. 1417. See e.g. ibid, para. 113. Ibid, paras. 11 (fn. 2), 4419. Ibid, para. 97 (fn. 72). For further references to the vclt, see paras. 119–​20, 1456, 1688, 1722 (fn. 89), 2624 (fn. 40), 3382, 3545 (fn. 33), 3598 (fn. 22), 3828.

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Broad Acceptance in the Jurisprudence of International Courts and Tribunals This section examines what weight has been given to the Pictet Commentaries in the jurisprudence of international courts and tribunals on the basis of the following examples: Superior responsibility, the application of the Additional Protocols, the notions of civilians, civilian population and direct participation in hostilities as well as war crimes and crimes against humanity.

2.1

2.1.1 Superior Responsibility Article 7 (1) icty Statute, Article 6 (1) ictr Statute and Article 6 (1) of the Statute of the Special Court for Sierra Leone cover the individual criminal responsibility of superiors who directly and unlawfully order the commission of crimes by subordinates.253 This direct form of criminal responsibility had already been codified in international law since the adoption of the Geneva Conventions,254 thus its prerequisites were undisputed when the icty, the ictr and the Special Court for Sierra Leone were established. However, Article 7 (3) icty Statute, Article 6 (3) ictr Statute and Article 6 (3) Statute of the Special Court for Sierra Leone, for the first time, codified individual criminal responsibility of superiors for crimes perpetrated by subordinates, irrespective of any orders or even in disregard of orders.255 This indirect criminal responsibility had previously only existed as a rule of customary international law, which had developed in the post-​Second World War jurisprudence of war crimes tribunals but had hardly been further substantiated in legal practice.256 The prerequisites stipulated in Article 7 (3) icty Statute, Article 6 (3) ictr Statute and Article 6 (3) Statute of the Special Court for Sierra Leone (and later also in Article 28 Rome Statute) needed to be further concretised. These prerequisites were: (1) a superior-​subordinate relationship, (2) knowledge or imputed knowledge, and (3) the failure to take preventive or punitive measures. For this concretisation, the ad hoc criminal tribunals –​particularly the icty and, later, the International Criminal Court –​made use of the Commentary to Articles 86 (2) and 87 ap i in order to specify their statutes’ provisions on indirect criminal 2 53 See also Article 25 (3) (b) Rome Statute. 254 Cf. Articles 49, 50, 129, 146 gc i–​i v. 255 Article 7 (3) icty Statute and Article 6 (3) ictr Statute state: ‘The fact that any of the acts referred to in … the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.’ 256 Y. Dinstein, ‘Command Responsibility’, mpepil, September 2015, para. 4.

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responsibility. Although these provisions, as well as the Additional Protocols in general, do not establish directly applicable provisions on superior criminal responsibility, Articles 86 (2) and 87 ap i require the high contracting parties to ensure that superiors supervise and control the conduct of subordinates to prevent violations of ihl.257 2.1.1.1 Superior-​Subordinate Relationship Article 7 (3) icty Statute, Article 6 (3) ictr Statute and Article 6 (3) Statute of the Special Court for Sierra Leone presuppose a superior-​subordinate relationship, but do not determine how this relationship must be structured in order to establish criminal responsibility of the superior for offences committed by his or her subordinates. Relying on the ap Commentary, the Delalić Trial Chamber held that the superior-​subordinate relationship presupposes ‘a hierarchy encompassing the concept of control’.258 From this standpoint, the Trial Chamber elaborated that ‘the actual possession, or non-​possession, of powers of control over the actions of subordinates’ is determinative for the criminal responsibility of a superior.259 Subsequently, it raised the question of whether this power of control must be legal or whether a factual power of control is sufficient.260 After the Trial Chamber had referred to Articles 86 (2) and 87 ap i, which extend a commander’s duty to prevent violations of ihl not only to subordinates, but also to ‘other persons under his control’, it adopted the ap Commentary’s explanations thereon: This type of superior-​ subordinate relationship is described in the Commentary to the Additional Protocols by reference to the concept of ‘indirect subordination’, in contrast to the link of ‘direct subordination’ which is said to relate the tactical commander to his troops.261 257 E.g., as observed by the Kordić and Čerkez Trial Chamber, Article 87 (3) ap i contains a similar duty of the superior to take preventive or punitive measures, see icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 441. See also icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) para. 70 (fn. 98). 258 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 354, citing Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3544. 259 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 370. 260 Ibid, para. 371. 261 Ibid.

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The Trial Chamber also cited examples of such an indirect subordination from the Commentary,262 and then examined the post-​Second World War jurisprudence of crimes tribunals, which mostly concurred with Articles 86 (2) and 87 ap i and the ap Commentary’s interpretations thereon.263 Based on these findings, the Trial Chamber concluded that factual power of control over subordinates suffices for the purpose of ascribing superior responsibility under Article 7 (3) icty Statute.264 Furthermore, it briefly argued that the control must be effective, in terms of ‘a material ability to prevent or punish criminal conduct, regardless of how that control is exercised.’265 At a later stage of the judgment, the Trial Chamber had to deal with a submission by the prosecution concerning cases of a factual power of control. The prosecution took the position that superior responsibility in the meaning of Article 7 (3) icty Statute also comprises cases in which the superior can exert substantial influence over persons, who are clearly not the superior’s subordinates.266 In other words, the prosecution argued that a chain of command is not necessary. The Trial Chamber rejected this claim for a lower threshold of control and claimed that in order to establish superior responsibility, a factual control of a superior over a subordinate must be ‘accompanied by the trappings of the exercise of de jure authority’.267 In support, the Chamber referred to the Commentary on Article 86 ap i, and stated that [t]‌he expression ‘superior’ in article 87 [86] of Additional Protocol i is intended to cover ‘only … the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter … is under his control’. Actual control of the subordinate is a necessary requirement of the superior-​subordinate relationship. This is emphasised in the Commentary to Additional Protocol i.268 In the appeals proceedings, the prosecution submitted that it had interpreted the Trial Chamber’s judgment as such that ‘the perpetrator must be “part of

2 62 Ibid. 263 Ibid, paras. 372–​6. 264 Ibid, para. 377. 265 Ibid, paras. 377–​8. 266 Ibid, paras. 646–​8. 267 Ibid, para. 646. 268 Ibid, para. 647 [correct reference added] citing Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3544.

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a subordinate unit in a direct chain of command under the superior” for the superior to be held responsible.’269 In addition, the prosecution upheld its position that the exercise of substantial influence over persons, who are clearly not the superior’s subordinates, suffices for the superior’s responsibility under Article 7 (3) icty Statute.270 Regarding both submissions, the Delalić Appeals Chamber based its responses on the ap Commentary. First, the Appeals Chamber rejected the prosecution’s interpretation of the Trials Chambers judgment by emphasising that the Trial Chamber referred to the Commentary to Article 86 (2) ap i, ‘where it is stated that the superior-​subordinate relationship should be seen “in terms of a hierarchy encompassing the concept of control”.’271 Furthermore, it stressed that the Trial Chamber referred to the ap Commentary to reason that the subordination may be direct or indirect.272 From this, the Appeals Chamber concluded that the Trial Chamber did not hold ‘that, for the necessary superior-​subordinate relationship to exist, the perpetrator must be in a direct chain of command under the superior.’273 Second, the Appeals Chamber joined the Trial Chamber’s rejection of the prosecution’s claim in favour of a lower threshold of control.274 In this regard, the Appeals Chamber noted that: [i]‌t is clear that the Trial Chamber drew a considerable measure of assistance from the icrc Commentary … in finding that actual control of the subordinate is a necessary requirement of the superior-​subordinate relationship.275 Subsequently, it cited an additional passage from the Commentary to Article 86 (2) ap i and declared ‘that this supports the Trial Chamber’s interpretation of the law on this point.’ Based on this, the Appeals Chamber concluded that the concept of effective control is the threshold to be reached in establishing a superior-​subordinate relationship for the purpose of Article 7 (3) icty Statute and rejected the lower threshold proposed by the prosecution.276

2 69 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 248. 270 Ibid, para. 254. 271 Ibid, para. 250. 272 Ibid. 273 Ibid, para. 251 [emphasis in original]. 274 Ibid, paras. 254–​6. 275 Ibid, para. 255. 276 Ibid, para. 256.

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The findings of the Delalić Chambers –​requiring effective control for a superior-​subordinate relationship to be established –​subsequently developed into established case law in the jurisprudence of the icty, in which references to the ap Commentary were frequent.277 The examination of the superior-​subordinate relationship also involved a number of other questions, such as the extent of superior criminal responsibility in the chain of command. In answering this question, the Kordić and Cerkez and the Kunarac Trial Chambers broadly relied on the Commentary to Article 87 ap i.278 The Kordić and Cerkez Trial Chamber observed from the Commentary that ‘there is no part of the army which is not subordinated to a military commander at whatever level’ and therefore held that responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-​in-​Chief down to the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task.279 Moreover, the Commentary was used to reason that civilian superiors can also be encompassed within superior responsibility under Article 7 (3) icty Statute and Article 6 (3) ictr Statute.280

277 See e.g. icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 276, icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) para. 791; icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) paras. 359–​63; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) paras. 57–​63; icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​ 87/​1-​T (23 February 2011) para. 1881. 278 icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 420; icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​ 23/​1-​T (22 February 2001) paras. 398–​9. 279 icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 420 citing Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3553. 280 See e.g. ictr, Prosecutor v Musema (Judgment) Case No ictr-​96-​13-​A (27 January 2000) para. 145. This was expressly included in Article 28 (b) Rome Statute, imposing, however, additional conditions to establish superior responsibility by civilians in comparison to the responsibility of military commanders or persons effectively acting as military commanders in Article 28 (a).

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2.1.1.2 The Mental Element: Knowledge or Imputed Knowledge The jurisprudence of the icty on the mental element begins with a case in which an argument by the prosecution based on the ap Commentary was not followed. In Delalic, the question arose of whether, in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge can be presumed under certain circumstances in order to establish superior responsibility under Article 7 (3) icty Statute.281 This was the position submitted by the prosecution, which, inter alia, relied on the Commentary to Article 86 (2) ap i. Contrary to the prosecution’s submission, the Trial Chamber held that the cases that the prosecution relied upon –​and which were subject to the Commentary’s explanations –​did not make a clear ruling on the existence of any general rule of presumption of knowledge.282 The Trial Chamber concluded that, in the absence of direct evidence, knowledge cannot be presumed, but must be established by way of circumstantial evidence.283 Furthermore, with regard to imputed knowledge, the Delalić Appeals Chamber quoted a passage from the Commentary to Article 86 (2) ap i in support of the Trial Chamber’s position –​contrary to the prosecution’s submission –​that in order to prove that the superior ‘had reason to know’, the superior is not required to possess concrete information on subordinates’ offences.284 It suffices to show that the superior had some general information, which would make her or him aware of possible unlawful acts by her or his subordinates.285 Like the Delalić Chambers, the Blaškić Trial Chamber was also concerned with the question of whether the superior must have concrete information on the subordinates’ offences. However, the Chamber carried out a more extensive investigation than the Delalić Chambers and, therefore, intensively considered the Commentary to Article 86 (2) and Article 87 (1) ap i. In a first step, based

281 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) paras. 384–​6. 282 Ibid, para. 385. It must be made clear, however, that the Commentary itself does not state whether a customary rule of presumption exists, but merely reflects the relevant case law, taking into account also decisions, which conversely ‘found that at least some proof must be furnished before accepting that a superior was aware of the acts of his subordinates’, see Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3546 and in particular fn. 39. 283 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 386. 284 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 238. 285 Ibid, para. 238. See also scsl, Prosecutor v Brima et al. (Judgment) Case No scsl-​04-​16-​T (20 June 2007) para. 794.

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on an exhaustive inquiry of judgments by post-​Second World War jurisprudence,286 the Trial Chamber observed that a customary rule was established according to which a commander may be liable for crimes by his subordinates if ‘he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction’.287 In a second step, the Trial Chamber raised the question of whether Additional Protocol i, and in particular its Article 86 (2), altered this customary law rule in a sense that superior responsibility can be established for failure to act in response to offences by subordinates ‘only if some specific information was in fact available to him which would provide notice of such offences.’288 The Trial Chamber rejected this alteration of customary law by adopting the interpretation of the words ‘had information’ in Article 86 (2) ap i by the Commentary, additionally noting that on the basis of post-​Second World War jurisprudence, the Commentary on Additional Protocol i explains that the information includes ‘reports addressed to [the superior], … the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits’.289 The Trial Chamber followed the Commentary’s further instructions explaining that a superior cannot claim to be ignorant of the information available to him or her,290 and finally held again in the words of the Commentary, that ‘[t]‌heir role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them, and to take the necessary measures for this purpose’.291

2 86 icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​T (3 March 2000) paras. 309–​22. 287 Ibid, 322. 288 Ibid, para. 324. 289 Ibid, para. 328. 290 Ibid, para. 329. 291 Ibid.

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After briefly considering two other sources adding no additional insights on the matter,292 the Trial Chamber concluded that ignorance cannot exclude a superior’s responsibility ‘where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know.’293 The findings of the Delalić Appeals Chamber and the Blaškić Trial Chamber concerning the interpretation of ‘had reason to know’ in the meaning of Article 7 (3) icty Statute became established case law. The Commentary to Article 86 (2) and 87 ap i was often referred to in addition.294 In Akayesu, the Trial Chamber discussed the question of whether it is required to prove the criminal intent of the superior to determine superior responsibility, in addition to the mental element in Article 6 (3) ictr Statute.295 The Trial Chamber rejected this view, holding that it is not necessary to prove the criminal intent of the superior; and claimed that on the basis of the Commentary to Article 86 ap i, at least negligence must be proven for the superior.296 2.1.1.3 Necessary and Reasonable Measures Article 7 (3) icty Statute, Article 6 (3) ictr Statute, Article 6 (3) Statute of the Special Tribunal for Sierra Leone and Article 28 (a) (ii) and (b) (iii) Rome Statute require that for criminal responsibility of the superior to be established, he or she must have failed to take the necessary and reasonable measures to prevent offences or to punish the perpetrators thereof. The icty and the ictr consulted the ap Commentary regarding general questions on the purpose of the provisions or the nature of the measures, as well as regarding specific measures to be taken by a superior. 2 92 Ibid, paras. 330–​1. 293 Ibid, para. 332. 294 See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 436; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) paras. 64–​8; icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) paras. 97–​101 (at para. 101 adding to the findings of the Delalić Appeals Chamber that ‘[i]‌n particular, as indicated in the icrc Commentary on Additional Protocol i, that evaluation [of the specific circumstances of each case] must distinguish between the time the information was available to the superior and the time the breach was committed’); icty, Prosecutor v Delić (Judgment) Case No it-​04-​83-​T (15 September 2008) paras. 65–​8; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 152. 295 ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) para. 488. 296 Ibid. The Musema Appeals Chamber confirmed these findings of the Akayesu Trial Chamber by referring in addition to the ap Commentary, see ictr, Prosecutor v Musema (Judgment) Case No ictr-​96-​13-​A (27 January 2000) paras. 129–​31.

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With regard to the general questions, it referred to the ap Commentary, for instance, to emphasise that the purpose behind the duty of military commanders to take necessary and reasonable measures lies in the nature of the commanders’ position in the field.297 Likewise, the importance of superiors to ensure compliance with ihl by their subordinates was stressed by reference to the Commentary.298 Concerning the general nature of the measures to be taken by superiors, the jurisprudence adopted the view of the Commentary: That this comprises not only measures that lie in the formal legal ability, but also measures that lie within the superior’s factual powers,299 which must ‘be evaluated on a case by case basis depending on the circumstances.’300 Moreover, it was inferred from the Commentary that the interplay of international law with national law has to be taken into account for the evaluation of the superior’s legal capacity. While national law establishes the powers and duties of civilian or military representatives, international law lays down the way in which they may be exercised.301 With respect to the temporal dimension of the measures, based on the Commentary, it was held that the preventative element of the duty to prevent ‘attaches where the subordinate “was about to commit such acts”, but before the actual offence has been committed’.302 Regarding the specific measures a superior must take, the Halilović Trial Chamber fundamentally examined the preventive measures, for which the Chamber extensively sought the Commentary’s guidance. The Trial Chamber identified, by recourse to the Commentary to Article 87 (1)-​(3) ap i, among others, the duty of commanders to instruct their subordinates before combat on their legal obligations and to train habits and reflexes reconcilable with ihl;303 to ensure orders and exercise control over troops and weapons, including the awareness of their condition, and to impose and maintain discipline;304 to create the appropriate frame of mind and ensure the rational use of the means of combat;305 and to exercise troop instructions by drawing attention to the 297 icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 441. 298 icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 143. 299 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 395. 300 icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) para. 81. 301 icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) paras. 137–​42. 302 icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 90. 303 Ibid, para. 83. 304 Ibid, paras. 84–​5. 305 Ibid, para. 85.

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actions to be avoided and taking into account the specific situation and the morale of the troops.306 The Hadžihasanović and Kubura Trial Chamber adopted these findings from the Halilović Trial Chamber, but additionally referred to the ap Commentary,307 and based its further examination on the Commentary to Article 87 (2) ap i, from which it cited the various means of a commander to fulfil its duty to disseminate rules of ihl among their subordinates.308 The Strugar Trial Chamber cited the Commentary when interpreting the commander’s duty ‘to initiate such steps as are necessary to prevent such violations’ in Article 87 (3) ap i. Based on the Commentary, it concluded that ‘this duty varies for each level of command’. The Chamber subsequently quoted examples from the Commentary on how the duty is to be fulfilled in specific cases.309 Regarding the duty to punish, based on the Commentary to Article 87 (3) ap i, the Kordić and Cerkez Trial Chamber stated that [t]‌his duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself.310 The Strugar and the Halilović Trial Chambers further specified these findings by adopting the Commentary’s interpretation of the commander’s duty ‘to initiate disciplinary or penal action’ in Article 87 (3) ap i, according to which the commander, inter alia, must inform superior officers of the situation, draft a report, exercise a disciplinary sanction or propose it to a superior, and refer the case to a judicial authority.311

3 06 Ibid. 307 icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) paras. 146–​7. 308 Ibid, paras. 145–​50. 309 icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) para. 375. 310 icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 446. This was confirmed e.g. in icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 174. 311 icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) para. 377; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 99 quoting Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3562. Confirmed e.g. in icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 176.

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These findings on the preventive and punitive measures were subsequently adopted in the jurisprudence of the icty and the International Criminal Court, which additionally referred to the ap Commentary.312 2.1.2 Application of the Additional Protocols International courts and tribunals used the ap Commentary in various instances to determine the applicability of the Additional Protocols, as well as the applicability of the Geneva Conventions. For example, the Commentary was relied upon to define the notion of armed conflict,313 and to clarify that the application of Additional Protocol ii and Common Article 3 relies on objective criteria and does not depend on the subjective will of the parties to the conflict.314 Likewise, for the reasoning of the applicability ratione loci of Additional Protocol ii, the position of the Commentary was adopted, arguing that the protection under Additional Protocol ii applies ‘irrespective of the exact location of the affected person in the territory of the state engaged in the conflict.’315 The ap Commentary was further considered to elucidate the differences between, and possible interactions for, the application of Common Article 3 and Additional Protocol ii. While Common Article 3 only mentions the existence of an armed conflict not of an international character for its application; Article 1 (1) ap ii establishes further criteria for the application of Additional Protocol ii. For instance, it establishes that organised armed groups must be under responsible command and exercise a certain degree of control over a part of the high contracting party’s territory. This narrow wording in Article 1 312 See e.g. icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​T (30 June 2006) para. 327 (fn. 941); icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​A (16 October 2007) para. 63; icty, Prosecutor v Delić (Judgment) Case No it-​04-​83-​T (15 September 2008) paras. 70, 74; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) paras. 155-​8; icc, Prosecutor v Bemba Gombo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​05-​01/​08-​3343 (21 March 2016) paras. 203 (fn. 462) and 208. 313 See e.g. ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) para. 620; ictr, Prosecutor v Musema (Judgment) Case No ictr-​96-​13-​A (27 January 2000) paras. 248 and 252–​8; icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​ 05-​87-​T (26 February 2009) para. 820. 314 See e.g. ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) paras. 603 and 624; ictr, Prosecutor v Semanza (Judgment) Case No ictr-​97-​20-​T (15 May 2003) para. 357. 315 ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) para. 635. See also ictr, Prosecutor v Musema (Judgment) Case No ictr-​96-​13-​A (27 January 2000) para. 283; ictr, Prosecutor v Semanza (Judgment) Case No ictr-​97-​20-​T (15 May 2003) para. 367.

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(1) ap ii for the material application of Additional Protocol ii raised questions concerning its effect on the threshold for the application of Common Article 3. In the jurisprudence of international courts and tribunals, based on the ap Commentary, the larger and more detailed scope of Additional Protocol ii was highlighted to justify the higher threshold of Additional Protocol ii, and thus to negate an effect on the threshold of Common Article 3. For instance, quoting from the Commentary to Article 1 (1) ap ii, in Boškoski and Tarčulovski the icty Trial Chamber emphasised that the difference in the required degree of organisation is logical in view of the more detailed rules of international humanitarian law that apply in Additional Protocol ii conflicts, which mean that ‘there must be some degree of stability in the control of even a modest area of land for them to be capable of effectively applying the rules of the Protocol’.316 At the same time, not only was a restriction on the threshold of Common Article 3 rejected based on the ap Commentary, but an extension of the applicability of Common Article 3 to international armed conflicts was also established.317 2.1.3 The Notions of Civilians and Civilian Population With the adoption of the two Additional Protocols, comprehensive provisions on the protection of civilians and the civilian population residing in enemy territory from the consequences of hostilities were codified for the first time.318 In order to ensure effective protection, Article 50 ap i provides definitions of ‘civilian’ and ‘civilian population’. Nevertheless, in the jurisprudence of international courts and tribunals, the explanations of the Commentary to Article 50 ap i319 were often quoted as

316 icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​T (10 July 2008) para. 197. See also icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) para. 87; ECtHR, Case of Korbely v Hungary, Appl. No 9174/​02, Judgment (19 September 2008) para. 87. 317 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 149. 318 For further reading, see N. Ronzitti, ‘Civilian Population in Armed Conflict’, mpepil, May 2016. 319 With regard to the definition of civilian, see e.g. ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​1-​T (21 May 1999) para. 180; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 101. With regard to the definition of civilian population, see e.g. ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 December 1999) para. 100; icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) para. 425; icty, Prosecutor v Blaškić

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supplementary to, or instead of, these definitions, which were seen as not ‘concise’.320 With regard to the concept of ‘civilian’, Article 50 (1) ap i provides a negative definition, which includes all those who do ‘not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.’ In a number of cases, this led the international tribunals to ask whether the persons concerned fell under Article 4 A gc iii or Article 43 ap i, for whose interpretation they were frequently guided by the ap Commentary.321 The ap Commentary was considered so as to clarify further questions that were neither covered by the definition in Article 50 (1) ap i, nor explicitly answered in the Additional Protocols. For instance, the Martić and the Đorđević Trial Chambers referred to the Commentary when asserting that the concept of ‘civilian’ enshrined in Article 50 (1) ap i applies also in non-​international armed conflicts.322 The Milošević Trial Chamber relied on the Commentary when analysing which persons the presumption of civilian status in Article 50 (1) ap i applies to,323 concluding that those persons included are those who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.324

320 321

322 323 324

(Judgment) Case No it-​95-​14-​A (29 July 2004) paras. 114–​5. See also icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 801. ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 December 1999) para. 100. See e.g. icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 112; icty, Prosecutor v Tadić (Judgment) Case No it-​94-​1-​A (15 July 1999) para. 92 (fn. 113); icty, Prosecutor v Blaškić (Judgemnt) Case No it-​95-​14-​A (29 July 2004) paras. 112-​5; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 92. icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​A (8 October 2008) para. 300; icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) para. 2066 (fn. 7110). Cf. Article 50 (1) ap i: ‘In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’ icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) para. 946 quoting Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 1920. See also scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​ 15-​T (2 March 2009) para. 87 (deciding on the basis of the Commentary that armed law enforcement agencies of a state are presumed to be civilians).

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The concept of civilian populations was up for discussion in the icty jurisprudence, particularly the principle in Article 50 (3) ap i, which stipulates that ‘[t]‌he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.’ The reason for this discussion was the participation of so-​called ‘non-​regular units’ in the Yugoslav Wars, whose members usually resided in their homes, thus in areas of the civilian population. With the guidance of the ap Commentary, it was found that the members of these non-​regular units can be classified as combatants, i.e. non-​civilians.325 In turn, the question arose as to whether, and under which circumstances, the status of the civilian population would change if a large number of non-​regular unit members were present. In this regard, the Blaškić Appeals Chamber quoted the ap Commentary, stating that in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.326 From this quotation, the Appeals Chamber concluded that in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined.327 The subsequent jurisprudence of the icty confirmed this approach of the Blaškić Appeals Chamber, emphasising that the Appeals Chamber based its approach on the ap Commentary.328 325 See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) para. 51 quoting Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 1677. 326 icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 115 quoting Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 1922. 327 icty, Prosecutor v Blaškić (Judgment) Case No it-​95-​14-​A (29 July 2004) para. 115. 328 icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) paras. 921-​4; icty, Prosecutor v Mrkšić and Šljivančanin (Judgment) Case No it-​95-​13/​1-​A (5 May 2009) paras. 31–​2; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 94; icc, Prosecutor v Banda (Public redacted ‘decision on the “defence request for termination of proceedings”’) icc-​02/​05-​03/​09-​535-​Red (30 January 2014) Separate

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In this regard, it is noteworthy how in Galić, the Appeals Chamber assessed the Trial Chamber’s approach to classify the status of civilian population. The Galić Appeals Chamber stated that [t]‌he strict test apparently posited by the Trial Chamber, namely that the presence of combatants within the civilian population ‘does not’ change its status, may seem to depart from the above finding of the Appeals Chamber. However, in footnote 91 of the Trial Judgement, the Trial Chamber acknowledged the nuances of its position by referring to the above quotation of the icrc Commentary, as referred to in the Blaškić Appeal Judgement. The Appeals Chamber therefore finds that the Trial Chamber was correct in its interpretation of the law in paragraphs 50 and 51 as it recognised the variable considerations with respect to determining the characterisation of a given population. Galić’s argument is accordingly dismissed.329 It appears that the reference to the Commentary to Article 50 (3) ap i was sufficient in the view of the Appeals Chamber to accept the approach, which was developed in Blaškić from the Commentary. 2.1.4 The Notion of Direct Participation in Hostilities The protection afforded to individual civilians by Common Article 3, Additional Protocol i (Part iv, Section i, c.f. Article 51 (3)) and Additional Protocol ii (Part iv, c.f. Article 13 (3)) continues until such time as civilians take a direct part in hostilities. The same notion applies to the equivalent rules under international criminal law in the Statutes of the International Criminal Court, the Special Court for Sierra Leone, the icty and the ictr.330 However, neither treaty nor customary international law provide a definition of direct participation in hostilities. The ap Commentary defines direct participation in hostilities as ‘acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces’331 and ‘acts of war

opinion of Judge Eboe-​Osuji, para. 5; icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) para. 474 (fn. 1551). 329 icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) paras. 137–​8. 3 30 Cf. Article 3 icty Statute in combination with relevant customary ihl; Article 4 icty Statute in combination with Common Article 3 or Article 13 (3) ap ii; Article 4 (a) Statute of the Special Court for Sierra Leone; Article 8 (2) (b) lit. i, (c), (e) lit. i Rome Statute. 331 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 1944.

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that by their nature or purpose str[ike] at the personnel and matériel of enemy armed forces’ respectively.332 These definitions were frequently adopted in the jurisprudence of the International Criminal Court, the Special Court for Sierra Leone, icty and ictr.333 The Sesay Trial Chamber introduced the Commentary’s definition as ‘the accepted view in international humanitarian law’.334 Further ambiguities relating to the notion of direct participation in hostilities were clarified by means of the ap Commentary. For instance, the Commentary has been referred to in order to distinguish between direct participation in hostilities and participation in the war effort.335 The Strugar Appeals Chamber was confronted with the question of whether conduct amounting to direct participation in hostilities is limited to combat activities. Based on the Commentary to Article 51 (3) ap i and Article 13 (3) ap ii, in addition to case law, a UN General Assembly Resolution and military manuals, it concluded that direct participation in hostilities may go beyond combat activities,336 but that ‘an enquiry must be undertaken on a case-​by-​ case basis, having regard to the individual circumstances’.337

3 32 Ibid, para. 4788. 333 For the adoption of the Commentary’s definition to Article 51 (3) ap i, see e.g. ictr, Prosecutor v Rutaganda (Judgment) Case No ictr-​96-​3-​T (6 December 1999) para. 100 (using the definition of the Commentary to Article 51 (3) ap i while referring to the Commentary to Article 13 (3) ap ii); icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​ T (5 December 2003) para. 48; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 33 (fn. 75); scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) para. 134. For the adoption of the Commentary’s definition to Article 13 (3) ap ii, see icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 790. 334 scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 1720. 335 icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) para. 947. Subsequent judgments confirmed the approach by the Milošević Trial Chamber referring in addition to the Commentary to Article 51 (3) ap i, see e.g. icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 93; icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) para. 452. 336 icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​A (17 July 2008) paras. 173 (fn. 429–​30), 176 (fn. 437, 439). 337 Ibid, para. 178. See also scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) para. 134; scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 104. Note in this regard E. Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (oup, 2015), p. 68 (‘Perhaps the most comprehensive assessment of dph came in the case of Strugar. In that case, the Appeals Chamber reaffirmed the position, outlined in the icrc Commentary’).

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In Lubanga Dyilo, the International Criminal Court Appeals Chamber considered the Commentary to Article 77 ap i to assess whether the offence of using children to participate actively in hostilities under Article 8 (2) (e) (vii) Rome Statute was fulfilled, and, in particular, whether the necessary link between the activity for which the child was used and the combat existed.338 2.1.5 War Crimes and Crimes against Humanity To prosecute war crimes and crimes against humanity, the icty, the ictr and the Special Court for Sierra Leone had to consider and interpret their Statutes as well as the Additional Protocols. While Article 4 ictr Statute and Article 3 Statute of the Special Court for Sierra Leone explicitly provide for prosecution of certain violations of Additional Protocol ii; in many instances, the Statutes of the tribunals are indirectly related to the Additional Protocols. First, they constitute criminal offences, which correspond to the prohibitions laid down in the Additional Protocols and use the same terminology. Second, they allow for the prosecution of violations of the laws or customs of war, which includes customary ihl developed from, or reflected in, the Additional Protocols. In many decisions, the icty was guided by the ap Commentary in its interpretations, especially regarding the mens rea element of the offences. Quite a few of these decisions have subsequently been applied as leading decisions in legal practice and in academia. One of the interpretations of the icty concerns the offence of attacking civilians.339 While ‘attack’ is principally defined in Article 49 (1) ap i as ‘acts of violence against the adversary, whether in offence or in defence’, the Galić Trial Chamber additionally considered the ap Commentary to conclude that ‘“attack” is a technical term relating to a specific military operation limited in time and place.’340 This definition was confirmed in subsequent judgments by the icty, which additionally referred to the ap Commentary.341 The Sesay Trial Chamber applied the Commentary’s definition of ‘attack’ for a situation concerning a non-​international armed conflict emphasising that, according to the 338 icc, Prosecutor v Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) Case No icc-​01/​04–​01/​06 A 5 (1 December 2014) paras. 324–​7, and 334–​5; icc, Prosecutor v Lubanga Dyilo (Decision on sentence pursuant to Article 76 of the Statute) Case No icc-​01/​04-​01/​06-​2901 (10 July 2012) para. 37. 339 Attacking civilians may constitute a violation of the laws or customs of war, cf. Article 3 icty Statute, Article 4 ictr Statute. 340 icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) para. 52. 341 See e.g. icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) para. 282; icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) para. 943.

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Commentary, at the diplomatic conference it was agreed that the same meaning should be given to the term ‘attack’ in both Protocols.342 The Galić Trial Chamber considered the Commentary’s explanations of Article 85 (3) ap i to examine the mens rea element of the offence of attacking civilians. This provision imposes the condition that the attack must be committed wilfully for the qualification of an attack on civilians as comprising a ‘grave breach’. The Commentary defines the term ‘wilfully’ as follows: [T]‌he accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.343 The Galić Trial Chamber accepted this definition without considering other sources and concluded that ‘[t]‌he perpetrator who recklessly attacks civilians acts “wilfully”.’344 The Galić Appeals Chamber stressed that the Trial Chamber relied on the Commentary for its conclusions regarding the mens rea element and quoted the Commentary’s passage as decisive for the differentiation of recklessness and negligence. Based on the Commentary, the Appeals Chamber held that ‘[t]‌he Trial Chamber’s reasoning in this regard is correct and Galić offers no support for his contention that the Trial Chamber committed an error of law.’345 Subsequent decisions further confirmed the approach of the Galić Trial Chamber, most of which also cited the Commentary’s definition of wilfully.346 342 scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 220. See also scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​A (26 October 2009) para. 500. 343 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3474. 344 icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) para. 54. 345 icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) para. 140. 346 See e.g. icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 36; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) para. 72; icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​T (12 December 2007) para. 951; icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​A (17 July 2008) para. 270; icty, Prosecutor v Perišić (Judgment) Case No it-​04-​81-​T (6 September 2011) para. 100;

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Another interpretation relying on the ap Commentary concerns the offence of wilful killing and murder.347 While the actus reus element was clear in this case,348 the Delalić Trial Chamber had to examine the mens rea element, which was the subject of dispute between the parties to the case. Relying on the Commentary to Article 85 (3) ap i, the prosecution argued that the offence of wilful killing and murder ‘incorporates the situation where the accused commits acts and is reckless to their consequences and where death is foreseeable.’349 In contrast, the defence submitted ‘that the words “reckless” and “intent” are mutually exclusive’ and made a claim for the requirement of a specific intent of the accused to cause death by his actions.350 The defence based this argumentation on the Pictet Commentary to Article 32 gc iv.351 From this discussion, the Trial Chamber started the examination of the required mens rea. Noting that the Pictet Commentary to Article 32 gc iv does not provide a sufficient explanation, the Trial Chamber stated that Guidance may, however, be found in the Commentary to Additional Protocol i. In relation to article 11 of that instrument, the commentary incorporates the concept of ‘recklessness’ into that of ‘wilfulness’, whilst excluding mere negligence from its scope. Likewise, in relation to article 85 of the Additional Protocol, the commentary seeks to distinguish ordinary negligence from wrongful intent or recklessness, and regards only the latter as encompassed by the term ‘wilful’.352 Subsequently, the Trial Chamber studied the ordinary meaning of ‘wilful’, taking an English dictionary into account, as well as the mens rea requirement for murder and similar offences in the common law and civil law systems.353 However, the study of the ordinary meaning remained inconclusive for the

347 348 3 49 350 351 352 353

icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 192; icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) para. 456. According to the icty Statute, wilful killing and murder may constitute a grave breach of the Geneva Conventions (Article 2 lit. a), as well as a crime against humanity (Article 5 lit. a). icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 424 (‘In relation to homicide of all natures, this actus reus is clearly the death of the victim as a result of the actions of the accused’). Ibid, para. 426. Ibid, paras. 427–​9. Ibid, para. 429. Ibid, para. 432. Ibid, paras. 433–​6.

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mens rea requirement. The analysis of the common law and civil law systems only showed that some intention is needed, but that differing forms of classification of the mental element exist.354 The Trial Chamber turned back to the Commentary on Article 11 and Article 85 ap i, emphasising that the Commentary includes recklessness in the meaning of wilful.355 Based on this, the Trial Chamber concluded that [it] is in no doubt that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life.356 Later, the Halilović Trial Chamber confirmed the Delalić Trial Chamber’s approach to the mental element of the offence of wilful killing and murder, while additionally referring to the Commentary to Article 85 (3) ap i.357 Moreover, based on the ap Commentary, the icty specified the requirements of the offence of outrages upon personal dignity. The Aleksovski Trial Chamber, after reasoning that the offence can be prosecuted as a violation of the laws or customs of war (Article 3 icty Statute) due to the customary character of Common Article 3,358 was confronted with the task of defining the actus reus and the degree of mens rea required for the offence. The Trial Chamber held that ‘[t]‌he four Geneva Conventions themselves do not expound on these questions’ and stated further that the Commentaries prove to be more helpful by providing that ‘outrages upon personal dignity refer to acts which, without directly causing harm to the integrity and physical and mental well-​being of persons, are aimed at humiliating and ridiculing them.’359

3 54 Ibid. 355 Ibid, para. 437. 356 Ibid, para. 439. 357 icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 35 (fn. 80). 358 icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) para. 50. 359 Ibid, para. 55 citing Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, para. 3047.

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In the following, only based on the cited passage of the Commentary to Article 75 (2) lit b. ap i, the Trial Chamber concretised the requisite degree of mens rea holding that the Commentary indicates that the accused must have committed the act with the intent to humiliate or ridicule the victim. The icrc, in proposing the mental element for the offence of ‘inhuman treatment’ accepted a lower degree of mens rea, requiring the perpetrator to act wilfully. Recklessness cannot suffice; the perpetrator must have acted deliberately or deliberately omitted to act but deliberation alone is insufficient. While the perpetrator need not have had the specific intent to humiliate or degrade the victim, he must have been able to perceive this to be the foreseeable and reasonable consequence of his actions.360 Although not the subject of appeal, the Aleksovski Appeals Chamber opposed the Trial Chamber’s reasoning on the mental element, which it held was ‘not always entirely clear’. The Appeals Chamber explicitly addressed the Trial Chamber’s interpretation of the Commentary to Article 75 (2) lit b. ap i:361 The Appeals Chamber does not interpret the observation in the icrc Commentary on the Additional Protocols, that the term ‘outrages upon personal dignity’ refers to acts ‘aimed at humiliating and ridiculing’ the victim, as necessarily supporting a requirement of a specific intent on the part of a perpetrator to humiliate, ridicule or degrade the victims. The statement seems simply to describe the conduct which the provision seeks to prevent.362 In a later judgment, the Kunarac Trial Chamber resumed the findings of the Trial Chamber and the Appeals Chamber in Aleksovski on the mental element for the offence of outrages upon personal dignity. The Trial Chamber, however, took the side of the Appeals Chamber stating explicitly that the Aleksovski Appeals Chamber did not interpret the ap Commentary in a way such that a specific intent is required.363

3 60 icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) para. 56. 361 icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) para. 27. 362 Ibid. 363 icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​23/​1-​T (22 February 2001) paras. 508–​9.

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The ap Commentary also played a role in the determination of other war crimes or crimes against humanity, such as recruitment of child soldiers,364 unlawful deportation or transfer365 and plunder of public or private property.366 2.1.6 Deference to a Special Source As observed for the Pictet Commentaries, the examples of the usage of the ap Commentary in the jurisprudence of international courts and tribunals show that great weight was given to them with regard to various issues of ihl and fundamental questions of international criminal law. Regarding international criminal law, the ap Commentary was more extensively relied upon than the Pictet Commentaries. The icty and the ictr especially made extensive use of the ap Commentary in the beginning of their jurisprudence. As explained above, at that time, many legal questions were unresolved and –​except for the post-​Second World War jurisprudence –​no case law existed. The difficult negotiations at the diplomatic conference to the Additional Protocols, resulting in vague rules and loopholes, increased the need for specification of the Additional Protocols’ provisions.367 As exemplarily demonstrated above, with the interplay of Additional Protocol ii and Common Article 3 and the notions of civilians and direct participation in hostilities, the ap Commentary was almost the only source relied on to meet specification needs. This is shown by the ad hoc tribunals depending on the Commentary to, inter alia, adopt definitions,368 examples,369 and information

364 scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) paras. 191–​2; scsl, Prosecutor vs Taylor (Judgment) Case No scsl-​03-​01-​T (18 May 2012) para. 439 (fn. 1055). 365 icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 518 (fn. 1354); icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​A (17 December 2003) para. 220; icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) paras. 597, 599 (fn. 1976), 600; icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​05-​87-​T (26 February 2009) para. 166; icty, Prosecutor v Popović et al. (Judgment) Case No it-​05-​88-​T (10 June 2010) paras. 901–​3; icty, Prosecutor v Prlić (Judgment) Case No it-​04-​74-​T (29 May 2013) para. 53. 366 icty, Prosecutor v Naletilić and Martinović (Judgment) Case No it-​98-​34-​T (31 March 2003) para. 612; scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​T (2 August 2007) para. 159; scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 206. 367 See in this Chapter, at 2. 368 E.g. scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​A (26 October 2009) para. 598. 369 See e.g. icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) para. 600; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November

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on the purpose of the Additional Protocols.370 The ad hoc tribunals extensively sought expertise from the ap Commentary’s interpretations when developing concepts of international criminal law. Especially for the development of superior responsibility, the ap Commentary’s interpretations on Articles 86 and 87 ap i served as a guidance for the ad hoc tribunals with regard to all three aspects of this concept: the superior-​subordinate relationship, the mental element and the necessary and reasonable measures.371 Articles 86 and 87 ap i were hardly taken into account, while the determination of the requirements of superior responsibility were taken on the basis of the ap Commentary. Furthermore, as for the Pictet Commentaries,372 the ap Commentary was cited in order to induce acceptance of the ad hoc tribunals’ decisions as indicated, for example, by the frequent citation of the ap Commentary to support the ascertainment of customary ihl.373 The later citation practice of the tribunals can also be seen in this light: References to the ap Commentary (as well as the Pictet Commentaries) declined over time in the jurisprudence of international courts and tribunals due to the rapid development of international criminal law, including case law and specialised academic commentaries. Nonetheless, the ap Commentary was still referred to in addition to case law,374 the Additional

370

371

3 72 373

374

2005) para. 99; icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) para. 342. See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​T (26 February 2001) para. 441; icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) para. 221; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) para. 56. On the development of command responsibility by the ad hoc tribunals, see R. Cryer, ‘The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake’, in S. Darcy and j. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (oup, 2010). See in this Chapter, at 1.1.4. icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) paras. 45 (fn. 78), 98; icty, Prosecutor v Martić (Judgment) Case No it-​95-​11-​T (12 June 2007) para. 71 (fn. 137); icty, Prosecutor v Krnojelac (Judgment) Case No it-​97-​25-​T (15 March 2002) para. 353. See also Schlütter, Developments in Customary International Law, p. 276 (‘It is particularly striking that among the evidence considered for the formation of a new norm of customary international law were the opinions expressed by the icrc’). See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 233 (fn. 331); icty, Prosecutor v Brđanin (Judgment) Case No it-​99-​36-​T (1 September 2004) para. 276 (fn. 736); icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) paras. 591, 791 (fn. 2234); icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 33 (fn. 75); ictr, Prosecutor v Semanza (Judgment) Case No ictr-​97-​20-​T (15 May 2003) para. 366.

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Protocols,375 and other international law treaties,376 as well as the draft code of the International Law Commission on Crimes Against the Peace and Security of Mankind.377 It is also striking that explicit deviations from the Commentary have rarely been made –​and even then, efforts were made to explain the deviation.378 No statement exists that critically deals with the use of the ap Commentary throughout the jurisprudence of international courts and tribunals. This absence of criticism of the ap Commentary implies that the accuracy of the Commentary was generally assumed. Another indicator of this is the frequent reference to the Commentary instead of the travaux préparatoires,379 as well as the above discussed references to the Commentary by the Delalić and the Galić Appeals Chambers in order to prove the accuracy of the legal findings of the Trial Chambers.380 Although slightly less than the Pictet Commentaries, also the ap Commentary was referred to as (legal) ‘authority’381 or the ‘accompanying Commentary’ to Additional Protocol i,382 and was cited as representative for the ‘international

375 See e.g. icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) para. 128 (fn. 221); icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​02-​60-​T (17 January 2005) para. 595 (fn. 1964); icty, Prosecutor v Hadzihasanovi cand Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 61 (fn. 140 and 143). 376 See e.g. icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 61 (fn. 141). 377 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 334 (fn. 345); icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​T (25 June 1999) paras. 70, 81; icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) para. 57 (fn. 134). 378 See e.g. icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 386. 379 See e.g. ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​ 1-​T (21 May 1999) para. 163; icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) para. 45 (fn. 78); icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​T (5 December 2003) para. 58 (fn. 106); Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) para. 90; icty, Prosecutor v Strugar (Judgment) Case No it-​01-​42-​T (31 January 2005) para. 222 (fn. 785); icc, Prosecutor v Lubanga Dyilo (Decision on sentence pursuant to Article 76 of the Statute) Case No icc-​01/​04-​01/​06-​2901 (10 July 2012) para. 37 (fn. 57). 380 See in this Chapter, at 2.1.1 and 2.1.3. 381 icty, Prosecutor v Mrkic et al. (Judgment) Case No it-​95-​13/​1-​T (27 September 2007) para. 447 (submitted by the Defense); icty, Prosecutor v Orić (Judgment) Case No it-​03-​68-​A (3 July 2008) Partially Dissenting Opinion and Declaration of Judge Liu, para. 31. 382 icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​A (12 November 2009) para. 60.

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legal opinion’383 and listed under the rubrics of (legal) authority,384 relevant international law385 or international legal instruments.386 The way in which it was used shows that it was perceived as something special, distinguishing it from other supplementary sources. It has been used as a reference point for assessing the legal situation tantamount to the Additional Protocols and has been referred, and interpreted as comparable, to treaties.387 2.2 Broad Acceptance in State Practice The following sections consider how broadly accepted the ap Commentary is within state practice. This discussion is guided by the question: Is the weight given to the ap Commentary in state practice comparably high to the weight given to the Commentary in the jurisprudence of international courts? Similar to the previous section on the Pictet Commentaries, this section considers acceptance within state practice by analysing military manuals and other forms of state practice, where applicable, such as national jurisprudence and pleadings by states before the International Court of Justice. 2.2.1 Military Manuals As with the Pictet Commentaries, the US DoD Manual and the UK MoD Manual but also the new French military manual published in 2022 are particularly informative about the use of the ap Commentary since they provide far-​reaching instructions and fully disclose their sources.388

383 ECtHR, Case of Korbely v Hungary, Appl. No 9174/​ 02, Judgment (19 September 2008) para. 90. 384 See e.g. icty, Prosecutor v Kordić and Čerkez (Judgment) Case No it-​95-​14/​2-​A (17 December 2004) Annex B; icty, Prosecutor v Blagojević and Jokić (Judgment) Case No it-​ 02-​60-​T (17 January 2005) Annex D; icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​ A (30 November 2006) Annex B; icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​ 74-​A (29 November 2017) Annex G; scsl, Prosecutor v Fofana and Kondewa (Judgment) scsl-​04-​14-​T (2 August 2007) Annex G; scsl, Prosecutor v Sesay et al. (Judgment) scsl-​ 04-​15-​T (2 March 2009) Annex E. 385 ECtHR, Case of Korbely v Hungary, Appl. No 9174/​ 02, Judgment (19 September 2008) paras. 50–​1. 386 scsl, Prosecutor v Fofana and Kondewa (Judgment) scsl-​04-​14-​A (28 May 2008) Annex B. 387 See e.g. icty, Prosecutor v Aleksovski (Judgment) Case No it-​95-​14/​1-​A (24 March 2000) para. 27; icty, Prosecutor v Kunarac et al. (Judgment) Case No it-​96-​23-​T & it-​96-​ 23/​1-​T (22 February 2001) para. 509. 388 See in this Chapter, at 1.2.1. Military manuals of other states almost exclusively cite certain categories of sources and do not refer to icrc commentaries at all or only rarely, see e.g. Danish Ministry of Defence, Military Manual (citing the ap Commentary only once at p. 487).

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The three manuals adopt definitions, such as the definition of ‘wilfully’,389 ‘military objective for objects’,390 ‘means and methods of warfare’,391 ‘taking a direct part in hostilities’,392 ‘troubles intérieurs’,393 ‘opérations militaires’,394 as well as examples, from the ap Commentary.395 Likewise, the manuals refer to the Commentary for detailed interpretations, for instance, with regard to the provisions on civil defence organisations,396 the protection of journalists397 or the principle of distinction.398 In particular, the DoD Manual refers not only to the interpretations of the Commentary, but quotes entire passages in its footnotes, using the ap Commentary on the Additional Protocols as commentaries on the DoD Manual’s own instructions. However, compared to the Pictet Commentaries, the ap Commentary seems to play a much less important role for the DoD Manual. In total, the DoD Manual refers to the ap Commentary in 6615 footnotes only 27 times (0,33%). There is no individual remark on the role of the Commentary for the understanding of the provisions of the Additional Protocols as had been done for the Pictet Commentaries. Nevertheless, the Commentary falls under the general appreciation as ‘sound legal positions’ for the sources used by the DoD.399 The minor role of the ap Commentary for the DoD Manual when compared to the Pictet Commentaries may be explained by the fact that the US is not a party to the Additional Protocols. Although the US considers that much of its practice is consistent with the Additional Protocols,400 the DoD provisions are rarely based directly on them. Rather, they are used as explanations with respect to the DoD provisions. Therefore, the DoD Manual

3 89 UK Ministry of Defence, MoD Manual, para. 16.39.1. 390 Office of General Counsel Department of Defense, DoD Manual, para. 5.7.5, see also para. 5.7.6.1; Ministère des Armées de la République Française, Manuel de droit des operations militaires, p.113. 391 Office of General Counsel Department of Defense, DoD Manual, para. 5.1.1. 392 Ibid, para. 5.9.3. 393 Ministère des Armées de la République Française, Manuel de droit des operations militaires, 85. 394 Ibid, p. 91. 395 Ibid, pp. 85, 113–​4, 139; Office of General Counsel Department of Defense, DoD Manual, paras. 5.5.3, 5.9.3.1, 5.25.3; UK Ministry of Defence, MoD Manual, paras. 5.19.1, 5.21.1, 9.4 (fn. 6). 396 UK Ministry of Defence, MoD Manual, paras. 5.42–​5.48. 397 Office of General Counsel Department of Defense, DoD Manual, para. 4.24.2. 398 Ministère des Armées de la République Française, Manuel de droit des operations militaires, pp. 113–​4. 399 Office of General Counsel Department of Defense, DoD Manual, p. v. 400 Ibid, paras. 19.20.1, 19.20.2.1.

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usually quotes the Commentary as (independent) explanations to the provisions of the DoD Manual, rather than as explanations for the provisions of the Additional Protocols. The Commentary is referred to along with the Additional Protocols,401 other international law treaties,402 military manuals,403 or statements by US officials,404 and academia.405 In contrast, the MoD Manual406 and the new French military manual407 refer more frequently to the Commentary on the Additional Protocols than to the Pictet Commentaries on the Geneva Conventions. Mention is mostly made only to the ap Commentary without further references. This implies that the Commentary, because of its acceptance, is considered sufficient to prove the correctness of a legal position for the manuals’ audience. 2.2.2 Other State Practice In addition, the ap Commentary served as a point of reference in various other fields of states’ legal practice. For instance, in pleadings before the International Court of Justice, states’ governments relied on the Commentary for interpretations of the Additional Protocols, inter alia, to evaluate the lawfulness of belligerent reprisals,408 to plead for the existence of a right to reparation for grave violations of ihl,409 and for information on the travaux préparatoires.410 Likewise, national courts, for instance, in the US,411 UK,412 or Israel,413 attributed great importance to the ap Commentary in their decisions. 4 01 402 403 404 405 406 407 408

409 410 4 11 4 12 413

Ibid, paras. 4.9.4 (fn. 39), 5.19 (fn. 70), 7.5.2 (fn. 13). Ibid, para. 5.7.2 (fn. 117). Ibid, paras. 4.6.4.1 (fn. 166), 5.9.3.1 (fn. 234). Ibid, paras. 5.1.1, 5.5.6, 6.9.1. Ibid, paras. 5.8.1 (fn. 186), 17.17.3 (fn. 204). 30 times in 2274 footnotes (1,32%). 43 times in 1221 footnotes (3,52%). Letter dated 19 June 1995 from the Honorary Consul of Solomon Islands in London, together with Written Comments of the Government of Solomon Islands (19 June 1995) regarding Legality of the Use by a State of Nuclear Weapons in Armed Conflict accessed 31 August 2023, pp. 61–​3. Written Statement of the Hellenic Republic (3 August 2011) regarding: Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, para. 37. See e.g. ibid, para. 36. US Supreme Court, Hamdan v Rumsfeld, Secretary of Defense et al., certiorari to the United States Court of Appeals for the District of Columbia circuit, 2006, 548 U.S. 557, p. 68. Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 paras. 164, 171, 218. Supreme Court sitting as the High Court of Justice, Public Committee against Torture in Israel et al. v Government of Israel et al., Judgment of 14 December 2006, hcj 769/​02, para. 33.

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Overall, as already observed for the jurisprudence of international courts and tribunals, in state practice, the Commentary was introduced as authoritative,414 particularly valuable415 and frequently it was given a special status different from other supplementary sources. The Marks of Authority of the Commentary on the Additional Protocols The analysis of the usage of the ap Commentary in the jurisprudence of international courts and tribunals, as well as in state practice, has demonstrated that the Commentary was given great weight in legal practice for the determination of rules of international law. This section studies the marks of the Commentaries’ authority based on this analysis and findings from academia. However, as explained above,416 the marks of authority are based on presumption.

2.3

2.3.1 Expertise The ap Commentary is mostly based on the discussions of the preparatory conferences to the Additional Protocols in which almost all of the Commentary’s authors participated.417 For each article of the Additional Protocols, the Commentary lists the preparatory work of the diplomatic conference on which the Commentary’s interpretations are based. As such, it can be assumed that the Commentary contains knowledge about the original will of the state parties to the Additional Protocols. In addition, the icrc, including the Commentary’s authors, initiated the conferences that led to the Additional Protocols, prepared the drafts for the Additional Protocols and provided commentaries to these drafts during the preparatory conferences. They knew of the difficulties involved in establishing the Additional Protocols and where the Protocols fell short. The diplomatic conference lasted four years in a time of decolonisation processes and the midst of the Cold War. It was characterised by several disagreements between states and national liberation movements, which participated for the first time

414 Counter-​ Memorial submitted by the Republic of Serbia, Volume i (1 December 2009) regarding Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) accessed 31 August 2019, para. 347. 415 Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 paras. 171. 416 See in this Chapter, at 1.3. 417 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv.

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in an international conference.418 This resulted in difficult and complex negotiations. The draft for Additional Protocol ii was cut in half shortly before adoption.419 Furthermore, rules were kept vague to achieve consensus.420 In order to fathom the background of the individual rules of the Additional Protocols by means of the travaux préparatoires, a great deal of effort and knowledge about the difficulties of the diplomatic conference and the shortcomings of the Additional Protocols is required. The Commentary preserves this expertise and makes it accessible for those who had not participated at the Conference. The Commentary also preserves the experience of the icrc in the field until 1986. It thus records expertise about the application of the law in action. The analysis of legal practice showed that the Commentary has indeed often been referred to in place of the travaux préparatoires;421 and to clarify those provisions of the Additional Protocols that were new or raised new questions on the application of ihl.422 Moreover, the Commentary served as a main source of expertise for the ad hoc tribunals to develop concepts of international criminal law.423 However, unlike the Pictet Commentaries, the ap Commentary was not unique from the start. In 1982, four years before the icrc published the ap Commentary, Michael Bothe, Karl Josef Partsch and Waldemar Solf published a scholarly commentary on the Additional Protocols.424 The three authors participated in the negotiations of the Additional Protocols at the diplomatic conference as members of the Delegation of the Federal Republic of Germany (former two) and the US Delegation (latter).425 This commentary is also mainly based on the discussions of the preparatory conferences, the most important documents of which are listed before each article’s interpretation. Thus, for

418 See e.g. Alexander, ‘International Humanitarian Law’, 18; Pictet, ‘General introduction’, pp. xxii–​x xxiii. 419 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflicts, 2nd edn., pp. 695–​707; Junod, ‘Additional Protocol ii’, 33. 420 Alexander, ‘A Short History of International Humanitarian Law’, 125. 421 See above note 160. For academia, see e.g. W. H. Boothby, The Law of Targeting (oup, 2012), p. 41. 422 See in this Chapter, at 2.1.6. 423 See in this Chapter, at 2.1.1 and 2.1.5. 424 M. Bothe, K. J. Partsch and W. A. Solf (eds.), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1st edn. (Martinus Nijhoff Publishers, 1982). 425 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflicts, 2nd edn., p. xv; Y. Sandoz, ‘Preface to the New Edition’, in M. Bothe, K. J. Partsch and W. A. Solf (eds.), New Rules for Victims of Armed Conflicts, 2nd edn. (Martinus Nijhoff Publishers, 2013), p. xx.

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the Bothe/​Partsch/​Solf Commentary, it can also be assumed that it contains knowledge about the will of the state parties to the Additional Protocols. The DoD Manual cites the Bothe/​Partsch/​Solf Commentary even more often than the ap Commentary (39 quotations compared to 27 quotations). The MoD Manual, however, has limited references to the Bothe/​Partsch/​Solf Commentary compared to the ap Commentary (8 quotations compared to 30 quotations) and the new French military manual does not cite the Bothe/​ Partsch/​Solf Commentary at all. Some legal scholars acknowledge the Bothe/​ Partsch/​Solf Commentary as ‘complementary’ to the ap Commentary.426 Sivakumaran observes that [t]‌he Bothe, Partsch and Solf Commentary on the Additional Protocols is regularly cited by international criminal courts and tribunals, and, at times, given the same authority as the icrc Commentary on the Additional Protocols.427 This perception is supported in a footnote by the Delalić Appeal Chamber holding that both commentaries agree that the French text should be preferred.428 However, Sivakumaran correctly states that the Bothe/​ Partsch/​ Solf Commentary were only at times given the same authority by these legal institutions. In general, the ap Commentary has been quoted much more frequently by international courts and tribunals and was relied on when developing concepts of international criminal law. These courts and tribunals have not shown the same deference to the Bothe/​Partsch/​Solf Commentary as they have shown to the ap Commentary. The Bothe/​Partsch/​Solf Commentary has not been designated as an authority, authoritative, or the accompanying commentary; nor was it cited as representative of the international legal opinion. It was also not used instead of the travaux préparatoires or treated as tantamount to the Additional Protocols. In the jurisprudence of international courts and tribunals, the ap Commentary has noticeably played a far more important role

426 L. Doswald-​Beck, ‘New Rules for Victims of Armed Conflict Preface’, in M. Bothe, K. J. Partsch and W. A. Solf (eds.), New Rules for Victims of Armed Conflicts, 2nd edn. (Martinus Nijhoff Publishers, 2013) p. xvii; Sandoz, ‘Preface to the New Edition’, p. xx. 427 S. Sivakumaran, ‘Making and Shaping the Law of Armed Conflict’ (2018) 71(1) Current Legal Problems 119–​60 at 143–​4. 428 icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​A (20 February 2001) para. 233 (fn. 331) (‘[t]‌he two commentaries on Additional Protocol i appear to agree that the French text which is broader, should be preferred.’) cited in Sivakumaran, ‘Making and Shaping the Law of Armed Conflict’, 144.

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for the determination of rules of international law than the Bothe/​Partsch/​Solf Commentary.429 The same can be observed in academia. For instance, the Bothe/​Partsch/​ Solf Commentary is described as an ‘unofficial, albeit respected, second commentary’,430 while the ap Commentary, on the other hand, is introduced as ‘authoritative’,431 ‘leading sources’,432 or ‘clearly important documents’.433 Nevertheless, the expertise of the ap Commentary is not unique and there is an alternative that has also been referred to. The more frequent use of the Bothe/​Partsch/​Solf Commentary in the DoD Manual can be seen as an indication that the ap Commentary on expertise had been faced with some competition. The ap Commentary hardly provides expertise on challenges facing ihl that have occurred since its publication in 1986/​87, which indicates that it is losing (or has lost) relevance in legal discourse. The icrc will publish the new Commentary on the two Additional Protocols in the coming years as a ‘second edition’, which implies that the ‘first edition’ has been revised and is partly outdated. On the other hand, the ap Commentary is still extensively used in legal practice434 and academia,435 including, for instance, the Tallinn Manual on the Applicable Law on Cyberwarfare.436 The ap Commentary was often referred to in the preparation of the icrc’s Interpretive Guidance on the Notion of Direct Participation in Hostilities,437 as well as later in the critical discussions 4 29 Cf. Sassòli, International Humanitarian Law, para. 4.68. 430 M. N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42(3) jilp 697–​739 at 715. 431 Cryer, ‘See a Little Light’, p. 114. 432 Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 192–​3. 433 Boothby, The Law of Targeting, p. 41 (only introducing the icrc Commentary as ‘important secondary evidence of the understandings reached by the negotiators at the time of the negotiation of these important treaties as to the meanings that they were giving to particular words, phrases, or provisions’ but not the Bothe/​Partsch/​Solf Commentary). 434 See in this Chapter, at 2.1 and 2.2. 435 See e.g. the use of the ap Commentary in recently published textbooks, such as: Crawford and Pert, International Humanitarian Law, p. 110; L. R. Blank and G. P. Noone, International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War (Wolters Kluwer, 2013), p. 330. 436 Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare. 437 Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 711 (‘During the discussions, the icrc’s Commentary on the Additional Protocols proved useful, although various participants pointed out, correctly, that it is non-​binding, reflecting only the icrc’s position at the time of publication’).

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of the Guidance’s interpretations.438 As observed for the Pictet Commentaries in relation to the already published new icrc Commentaries on the Geneva Conventions,439 the ap Commentary thus may serve as a control for the ‘correctness’ of the new Commentary and other icrc publications and be used in discussions to reject positions of the new icrc Commentary. Finally, the reiterated citations of the ap Commentary by international courts and tribunals, despite established case law, imply that the Commentary’s authority builds on marks of authority other than expertise, which indicates that the Commentary may continue to play a role in future legal discourse.440 2.3.2 Institutional Authority of the icrc As was the case with the Pictet Commentaries, the icrc commissioned and published the ap Commentary, and expressly declared that the Commentary is the personal work of its authors.441 The foreword describes the Commentary as scholarly work442 and, at times, it has been recognised as such within legal practice.443 Nevertheless, the Commentary has often been designated as the ‘icrc Commentary’ in legal practice and academia possibly due to the fact that the authors were icrc staff members,444 the support of the icrc’s legal commission,445 and the visual appearance of the Commentary.446 The Commentary itself seeks proximity to the icrc. In the introduction, the Commentary establishes a connection to the role of the icrc in the development of ihl.447 In addition, it highlights the icrc’s role as guardian of ihl and

438 See e.g. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd edn. (cup, 2010), p. 148; Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 780, 797, 803–​4, 807–​8. 439 See in this Chapter 1.3.1. 440 Cf. Sassòli, International Humanitarian Law, para. 4.68. 441 Hay, ‘Foreword’, p. xiii; Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv. 442 Hay, ‘Foreword’, p. xiii. See also Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv (‘strictly speaking, it is not a commentary of the icrc’). 443 See e.g. icc, Prosecutor v Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) Case No icc-​01/​04–​01/​06 A 5 (1 December 2014) para. 323. 444 Hay, ‘Foreword’, p. xiii. 445 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, p. xxv. 446 See also Sivakumaran, ‘Making and Shaping the Law of Armed Conflict’, 127 (‘the Commentaries did not in fact represent the official views of the icrc. Over time, and in practice, the Commentaries have come to be seen as reflecting the icrc’s view’). 447 Pictet, ‘General introduction’, p. xxix.

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presents itself as in line with this role.448 Against this background, it is likely that the ap Commentary benefits from the icrc’s authority.449 2.3.3 Authorship Jean Pictet (then vice president of the icrc) was not the editor for the ap Commentary. The editors were Yves Sandoz, Christophe Swinarski and Bruno Zimmermann –​probably less well-​known personalities in comparison to Pictet at the time of the ap Commentary’s publication. Still, Pictet was involved in the writing process. He presided over the reading committee, wrote the general introduction and was co-​author of a few sections. Pictet’s involvement, as well as his expertise and experience, was emphasised in the Commentary and the announcement of its publication.450 In doing so, a link to the successful Commentaries on the Geneva Conventions was also made.451 In fact, in legal practice and academia, the ap Commentary was sometimes linked to Jean Pictet.452 In judgments of the icty and the ictr, Pictet was listed as the editor of the ap Commentary.453 The DoD Manual also names Pictet as one of the ap Commentary’s editors (‘Pictet et al.’).454 However, the ap Commentary is not included in the DoD Manual’s individual acknowledgement of the Pictet Commentaries.455 It can be concluded that the authorship of the ap Commentary contributed less to its authority when compared to the significance of the authorship to the Pictet Commentaries’ authority. This is probably due to Pictet’s different role, which was much less prominent for the ap Commentary.

448 icrc, ‘Commentary on the Additional Protocols’, 280; Hay, ‘Foreword’, p. xiii; M. Torrelli, ‘Review: Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (1987) 27(256) irrc 119–​21 at 119. 449 See Chapter 1. 450 icrc, ‘Commentary on the Additional Protocols’, 279; Hay, ‘Foreword’, p. xlv. 451 Hay, ‘Foreword’, p. xiii. 452 See e.g. Reply of the Federal Republic of Germany (5 October 2010) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, p. 24 (fn. 30); Torrelli, ‘Review’, 119; Fryer, ‘Book Review’, 126. 453 See e.g. ictr, Prosecutor v Kayishema and Ruzindana (Judgment) Case No ictr-​95-​1-​T (21 May 1999) para. 180 (fn. 100); icty, Prosecutor v Milutinović et al. (Judgment) Case No it-​ 05-​87-​T (26 February 2009) Annex B. Sometimes also Claude Pilloud, another contributor to the Commentary, was named as the ap Commentary’s editor, see e.g. ictr, Prosecutor v Akayesu (Judgment) Case No ictr-​96-​4-​T (2 September 1998) para. 488 (fn. 90). 454 Office of General Counsel Department of Defense, DoD Manual, p. xxii. 455 Ibid, para. 19.16.

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2.3.4 Form, Methodology and Underlying Process As explained above for the Pictet Commentaries,456 the commentary form can play a role in authority of the ap Commentary. In addition, in comparison to the Pictet Commentaries, a professionalisation of the form, the consideration of legal methodology and the underlying process can be observed for the ap Commentary. For instance, in the beginning of each article-​commentary, the Commentary lists the relevant documents of, and to, the diplomatic conference. Moreover, the Commentary provides many more indications of sources, as well as an index. In the editors’ note, the sources that the Commentary refers to are named in the abstract, but no further information is given, such as the role of the sources for the interpretations.457 Each article-​commentary was subject to two reviews by a reading committee and the editors before publication, which implies thoroughness.458 The ap Commentary, unlike the Pictet Commentaries, does not use an emotional language, but only a functional one. It can be surmised that this professionalisation was necessary for the acceptance of the ap Commentary and plays a distinct role in its authority. Other scholarly publications have also taken these practices into account, as the Bothe/​Partsch/​Solf Commentary shows, which refers to the relevant documents of the diplomatic conference and provides indications of sources, as well as an index. Furthermore, the form and the underlying process of the ap Commentary were positively mentioned in a review.459 2.3.5 Tradition Whether a tradition of recourse to the ap Commentary developed cannot be determined with the same precision as for the Pictet Commentaries, since there have not been any similar statements on the usage of the ap Commentary.460 However, the frequency of recourse to the ap Commentary and the way in which it was used in decisions of international courts and tribunals, as well as 4 56 See in this Chapter, at 1.3.4. 457 Sandoz, Swinarski and Zimmermann, Commentary on the additional protocols, pp. xxv–​x xviii. 458 Ibid, p. xxvi. 459 Torrelli, ‘Review’, 119–​20. 460 Note in this regard that the statements observed for the Pictet Commentaries were made by US lawyers referring to their work at the US-​American Office of the Judge Advocate General of the Army and the US Department of State, respectively. The US, however, is not party to the Additional Protocols. In general, there are fewer state parties to the Additional Protocols than to the Geneva Conventions, which makes the (direct) application of the Additional Protocols, and thus also the use of the ap Commentary, less likely for those armed conflicts where non-​state parties are involved.

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in state practice, suggests that a tradition of recourse had developed. In particular, the description of the Commentary as the ‘accompanying Commentary’ to Additional Protocol i by the Milošević Appeals Chamber seems significant, since it implies that the Commentary is automatically considered for the interpretation of the Additional Protocols.461 Conclusion: Nearly a Primary Source, but Less Special than the Pictet Commentaries The investigation of the ap Commentary’s authority has shown that it enjoys a high authority, which is mainly based on expert knowledge, the reputation of the icrc, the form, methodology and underlying process, as well as tradition. Contrary to the Pictet Commentaries, the authorship seems to play a lesser role for the Commentary’s authority. In comparison with the Pictet Commentaries, no difference can be observed regarding the weight given to the ap Commentary in the jurisprudence of international courts and tribunals. However, the Commentary seems to be of less relevance in state practice than the Pictet Commentaries, which is probably due to the smaller number of parties to the Additional Protocols than to the Geneva Conventions, as the limited use of the ap Commentary in the DoD Manual suggests. Despite the publication of the new icrc Commentary on the Additional Protocols as ‘second edition’ to be expected in 2021, it is probable that the ap Commentary will keep its authority in the future as evidence of the historical will of the parties and the circumstances at the time of conclusion of the Additional Protocols and, as such, serve as a control of the new Commentary. What conclusions can be drawn from the ap Commentary’s authority for ihl? On the one hand, the ap Commentary has given relevance to the Additional Protocols to serve as a legal basis to decide on issues of and, thus, to enforce ihl. Since the Commentary’s interpretations are mainly based on the travaux préparatoires, they strengthen the Protocols’ link to state consent. Furthermore, the Commentary was regularly cited to provide information about the travaux préparatoires, the evaluation of which would otherwise have been very time-​consuming and possibly omitted due to the long and difficult negotiations of the diplomatic conference. On the other hand, the ap Commentary enjoyed a special status in legal practice. Despite the icrc’s lack of competence to issue binding interpretations, in the jurisprudence of international courts and tribunals, the Commentary was almost elevated to a primary source of international law. This challenges the

2.4

461 icty, Prosecutor v Milošević (Judgment) Case No it-​98-​29/​1-​A (12 November 2009) para. 60.

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dichotomy between law and non-​law for the field of ihl, as well as for international criminal law. A case in point is the broad reliance on the Commentary for the development of international criminal law concepts. However, the status of the ap Commentary in state practice was less high, unlike for the Pictet Commentaries –​although it was still given great weight. For example, there is no special note on the value of the ap Commentary in the DoD Manual like for the Pictet Commentaries. Moreover, contrary to the Pictet Commentaries, the ap Commentary usually provides references for its interpretations, mostly to the travaux préparatoires, which allows for a reconstruction of the Conventions’ origin in the will of states. Humanitarian considerations, the spirit of the time or other non-​ legal factors –​which constituted a basis for many of the Pictet Commentaries’ interpretations –​played a lesser role for the ap Commentary’s interpretations. In addition, the interpretations are much less directly based on the authors’ personal views. Consequently, for ihl, the ap Commentary poses a lesser challenge to the dichotomy between law and non-​law, state consent and neutrality than the Pictet Commentaries. 3

Customary International Humanitarian Law Study

The publication of the Study on Customary International Humanitarian Law by the icrc in 2005 followed a request from the 26th International Conference of the Red Cross and Red Crescent in 1995. In Resolution 1, the Conference endorsed the recommendations made by the Intergovernmental Group of Experts for the Protection of War Victims462 and asked the icrc to carry out the tasks entrusted to it by the recommendations.463 In Recommendation ii, which was adopted as an Annex to Resolution 1, the Intergovernmental Group of Experts for the Protection of War Victims had suggested to invite the icrc to prepare, with the assistance of experts in ihl representing various geographical regions and different legal systems, and in consultation with experts from governments and international organizations, a report on 462 1993 International Conference for the Protection of War Victims, Geneva, 30 August–​1 September 1993, Final Declaration, reprinted in (1993) 296 irrc 381. 463 26th International Conference of the Red Cross and Red Crescent, Resolution 1: International humanitarian law: From law to action –​Report on the follow-​up to the International Conference for the Protection of War Victims, Geneva, 3–​7 December 1995, paras. 3 and 8, reprinted in (1996) 310 irrc 58–​60.

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customary rules of ihl applicable in international and non-​international armed conflicts, and to circulate the report to States and competent international bodies.464 Shortly after the request from the Conference –​which has commonly been interpreted as a mandate in accordance with Article 5 (h) of the Statutes of the Movement465 –​the icrc started preparing the report, which took over 10 years and was presented to the 30th International Conference of the Red Cross and Red Crescent in 2007.466 The icrc entrusted the realisation of the report to two members of its legal division, Jean-​Marie Henckaerts and Luise Doswald-​Beck, who drafted the 161 Rules of customary ihl comprised in the Study. Many legal experts from the icrc, as well as several external governmental and academic experts, were involved at various stages of the preparation process.467 In particular, the overall goal of the Study was to fill two loopholes left in ihl, on the one hand, by the non-​universality of the two Additional Protocols,468 and on the other hand, by the lack of treaty law for non-​international armed conflicts.469 Regarding the lack of treaty rules in non-​international armed conflicts, in the intergovernmental meetings preceding the 26th International Conference of the Red Cross and Red Crescent, many states had expressed their wish that the icrc focuses its research on customary rules for non-​international 464 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–​27 January 1995, Recommendation ii, adopted as Annex ii to Resolution 1 at the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–​7 December 1995, reprinted in (1996) 310 irrc 84. 465 For a discussion of the legal significance of this mandate, see Chapter 1, at 2.2. 466 icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007. Originally the 26th International Conference had invited the icrc to report its findings to the 27th International Conference, see 26th International Conference of the Red Cross and Red Crescent, Resolution 1: International humanitarian law: From law to action –​Report on the follow-​up to the International Conference for the Protection of War Victims, Geneva, 3–​7 December 1995, para. 10, reprinted in (1996) 310 irrc 58–​60. In 1999, the icrc still had planned to have the final report to be ready in 2000, see J.-​M. Henckaerts, ‘Study on customary rules of international humanitarian law: Purpose, coverage and methodology’ (1999) 81(835) irrc 660–​8 at 660, 667. 467 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. li–​lvii. For a detailed discussion of the participation of experts, see in this Chapter, at 3.4.3. 468 J.-​M. Henckaerts, ‘Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict’ (2005) 87(857) irrc 175–​212 at 177; Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xxxiv. 469 T. Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99(4) ajil 817–​34 at 833.

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armed conflicts. However, in the end the icrc was asked to prepare the report with regard to both international and non-​international armed conflicts.470 In addition, the icrc hoped that the Study would convince states to ratify international treaties and to initiate new international treaties in areas where the Study demonstrated the existence of solid customary international law or a lack of legal certainty, respectively.471 Lastly, the Study was intended to support international criminal tribunals, as well as national courts, in the application of ihl.472 The Study is organised into two volumes. Volume i provides the 161 Rules, which were identified as customary international law governing armed conflicts.473 A large part of these Rules applies in non-​international armed conflicts.474 One hundred and thirty-​four Rules apply identically in both international and non-​international armed conflicts. Eight Rules apply in international armed conflicts and ‘arguably’ also in non-​international armed conflicts;475 four Rules differentiate between international and non-​international armed conflicts, but stipulate similar regulations;476 only thirteen Rules exclusively apply in international armed conflicts;477 and two Rules apply only in non-​international armed conflicts.478 Volume ii contains the practice on which the authors of the Study relied on for the identification of the Rules.479 The introduction to the Study provides a large section on the methodology underlying the Study’s identification of customary ihl.480 This section starts with a reference to Article 38 (1) (b) icj Statute, requiring a ‘general practice accepted as law’, and expounds that the Study’s methodology is based on the ‘classical’ two elements approach: consisting of state practice and opinio juris as crystalised in the jurisprudence of the International Court of Justice.481 4 70 Henckaerts, ‘Study on customary rules of international humanitarian law’, 661. 471 Ibid, 661–​ 2. See also Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, pp. 35–​6. 472 Henckaerts, ‘Study on customary rules of international humanitarian law’, 661–​2. 473 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i. 474 See on the following listing also J.-​M. Henckaerts and E. Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, in B. D. Lepard (ed.), Reexamining Customary International Law (cup, 2017), pp. 167–​8. 475 Rules 21, 23, 24, 44, 45, 62, 63 and 82. 476 Rules 124, 126, 128, and 129. 477 Rules 3, 4, 41, 49, 51, 106, 107, 108, 114, 130, 145, 146, and 147. 478 Rules 148 and 159. 479 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume ii. 480 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxxvii–​l i. 481 Ibid, pp. xxxvii–​x xxviii.

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Against this background –​and based on the jurisprudence of the International Court of Justice and the International Law Association’s Final Report of the Committee on the Formation of Customary (General) International Law482 in particular –​the section cements what kind of sources of state practice and opinio juris the Study relies on for the identification of customary ihl. With regard to sources of state practice, it is noteworthy that the Study takes into account states’ verbal acts,483 including states’ (confidential) communications to the icrc.484 Furthermore, the Study considers the practice of international organisations, as well as that of the icrc, as relevant practice for the identification of customary international law.485 The concepts of specially affected states found by the International Court of Justice in the North Sea Continental Shelf cases,486 and that of persistent objector are not relied on.487 Overall, the Study relies on the assumption that a general practice is sufficient for the identification of customary international law, i.e. the practice is not required to be universal.488 However, it is pointed out that the Study takes a ‘cautious approach’ regarding the role of treaty law for customary international law; assuming a widespread ratification only as an indication of universal practice, which has to be set in relation to the practice of states not party to the respective treaty in particular.489 With regard to the sources of opinio juris, the methodology section explains that due to the consideration of verbal acts as state practice, when there is sufficiently dense practice, the Study assumes that the opinio juris is generally contained within that practice so that the existence of opinio juris is not required to be demonstrated separately.490 Moreover, it refers to the occasional approach of international courts and tribunals that accepted the existence of a rule of customary international law ‘when that rule is a desirable one for international peace and security or for the protection of the human person,

482 International Law Association, Final Report: Statement of Principles Applicable to the Formation of General Customary International Law (2000). 483 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxxviii–​x xxix, xliii–​x liv. 484 Ibid, p. xl. 485 Ibid, p. xli. 486 icj, North Sea Continental Shelf (Federal Republic of Germany v Denmark and Federal Republic of Germany v the Netherlands) Judgment, icj Rep 1969, p. 3, para. 74. 487 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xliv–​x lv. 488 Ibid, p. xliv. 489 Ibid, pp. xlviii–​l i. 490 Ibid, p. xlvi.

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provided that there is no important contrary opinio juris.’491 However, it is not expressly set forth, whether the Study adopts this teleological approach.492 The Study simply adds that [t]‌his aspect of the assessment of customary law is particularly relevant for international humanitarian law, given that most of this law seeks to regulate behaviour for humanitarian reasons. In some instances, it is not yet possible to find a rule of customary international law even though there is a clear majority practice in favour of the rule and such a rule is very desirable.493 At the time of publication, the icrc stressed that ‘the study makes no claim to be the final word.’494 Yet, at the same time, the Study was described from those involved with it as ‘the clearest possible “photograph” of customary international humanitarian law as it stands today’,495 or ‘a snapshot’ of customary ihl ‘that is as accurate as possible’.496 Have the Study’s Rules indeed been recognised in academia and legal practice as a reflection of de lege lata? Did the Study fill the loopholes in ihl, convince states to ratify international treaties and support international criminal tribunals and national courts in the application of ihl as expected by the icrc? To clarify the Study’s authority for the determination of rules of ihl, the next three sections examine the large discussion of the Study in academia which evolved shortly after the Study’s publication and the reliance on the Study by international courts and tribunals and in state practice.497 3.1 Critical but Welcoming Reactions in Academia The publication of the Study was followed by several reactions in academia. Overall, the Study was welcomed. There was hardly any rejection of the Study 4 91 Ibid, p. xlviii. 492 For a reading that affirms the adoption, see M. MacLaren and F. Schwendimann, ‘An Exercise in the Development of International Law: The New icrc Study on Customary International Humanitarian Law’ (2005) 6(9) German Law Journal 1217–​42 at 1223. 493 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xlviii. 494 See e.g. Sandoz, ‘Foreword’, p. xxiii. 495 Kellenberger, ‘Foreword 2005’, p. xvii. 496 Henckaerts, ‘A Response to US Comments’, 487. 497 For a similar study, see Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, who additionally examined the practice of the Mechanism for International Criminal Tribunals, UN commissions of inquiry and other UN bodies.

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as a whole.498 However, in addition to some positive reviews, there were also numerous critical discussions of the Study. The reactions mainly focused on the methodology underlying the Study and the formulation of the Rules. Other aspects of the Study were also subject to discussion, such as the commentary on the Rules499 and the lack of definitions of controversial terms of ihl used by the Study.500 Jean-​Marie Henckaerts, one of the Study’s authors, responded to some of the reactions in online blogs and journals on international law. 3.1.1 Methodology The icrc’s claim that it adopts a classical methodological approach to the Study has been criticised since the Study incorporates a much broader view of state practice than is typically embraced within classical approaches.501 Ian Scobbie concluded that the introduction incompletely and selectively presents a survey of the jurisprudence of the International Court of Justice when arguing that the Study’s methodological approach is in line with the classical approach of the International Court of Justice.502 In particular, he observed a discrepancy between the International Court of Justice’s jurisprudence in the North Sea Continental Shelf cases and the Study’s methodology as presented in its introduction.503 On the other hand, the introduction to the Study’s methodology was criticised for being too aligned with the classical approach and not taking into account broader concepts of customary international law.504 A positive evaluation of the methodology was given by Michael Bothe, who assessed the

498 See e.g. W. H. Parks, ‘The icrc Customary Law Study: A Preliminary Assessment’ (2005) 99 Proceedings of the asil Annual Meeting 208–​12 at 212. 499 R. Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the icrc Customary Law Study’ (2006) 11(2) jcsl 239–​63 at 262–​3; D. Turns, ‘Weapons in the Study on Customary International Humanitarian Law’ (2006) 11(2) jcsl 201–​37 at 212. 500 Bothe, ‘Some Reflections on the icrc Study’, 175–​6. See also MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1226–​8 (criticising the absence of a definition of armed conflict also with regard to international armed conflicts). 501 L. M. Nicholls, ‘The Humanitarian Monarchy Legislates: The International Committee of the Red Cross and its 161 Rules of Customary International Law’ (2006) 17(1) Duke Journal of Comparative & International Law 223–​52 at 238, 243. 502 I. Scobbie, ‘The approach to customary international law in the Study’, in E. Wilmshurst and S. C. Breau (eds.), Perspectives on the icrc study on customary international humanitarian law (cup, 2007), p. 23. 503 Ibid, pp. 27–​47. 504 C. E. Claude, ‘Comments on the icrc Study on Customary International Humanitarian Law’ (2007) 44 Canadian Yearbook of International Law 2006 437–​49 at 440–​2.

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Study’s approach as ‘realistic, well considered, cautious yet not unnecessarily timid’;505 and described the introduction to the methodology as ‘an impeccable summary statement of the state of the art’.506 Others observed an ambivalence between the approach presented in the introduction and the factual application to the identification of the Rules.507 In fact, for some Rules there is reason to doubt whether the Study’s methodology has been fully respected by its authors. For instance, the Study’s introduction points out that the practice has to be ‘sufficiently “dense” to create a rule of customary international law’.508 But the practice presented for Rule 6 (loss of protection from attack) is rather thin with regard to the time element ‘and for such time as’, which is not included by many of the cited military manuals.509 Likewise, the commentary to Rule 146 claims the existence of a prohibition of reprisals against civilians during the conduct of hostilities, which is largely derived from Article 51 (6) ap i. Further state practice is hardly recorded. Instead, weight is given to a UN General Assembly Resolution, practice of the icrc and an obiter dictum by the icty,510 which provoked some criticism in academic debates.511 The commentary itself reveals that [b]‌ecause of existing contrary practice, albeit very limited, it is difficult to conclude that there has yet crystallised a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist on the strength of the practice of only a limited number of States, some of which is also ambiguous. Hence, there

5 05 Bothe, ‘Some Reflections on the icrc Study’, 163. 506 Ibid, 154. See in this regard also D. Fleck, ‘International Accountability for Violations of the Ius in Bello: the Impact of the icrc Study on Customary International Humanitarian Law’ (2006) 11(2) jcsl 179–​99 at 180–​1. 507 See e.g. D. Bethlehem, ‘The methodological framework of the Study’, in E. Wilmshurst and S. C. Breau (eds.), Perspectives on the icrc study on customary international humanitarian law (cup, 2007), p. 10. 508 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xlii. 509 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume ii, pp. 108–​13. 510 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. 520–​3. 511 Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 255–​6.

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appears, at a minimum, to exist a trend in favour of prohibiting such reprisals.512 Concerning individual components of the Study’s methodology, the sources of practice used by the Study for the identification of customary ihl were especially criticised. The use of verbal acts was frequently questioned generally,513 but also with regard to specific types of verbal acts.514 Beyond that, the Study was accused of being insensitive to the differentiation between legally and politically motivated statements by state representatives and of wrongly using the latter as state practice.515 The use of treaties as evidence of state practice was likewise questioned,516 which was often related to the criticism that the Study pays too little attention to the practice of non-​parties,517 especially concerning the Additional Protocols.518 Moreover, it was claimed that the Study ignores specificities of treaties expressed, for example, in their drafting history.519 512 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. 523. 513 See e.g. K. Anderson, ‘My initial reactions to the icrc Customary International Humanitarian Law Study’, Kenneth Anderson’s Law of War and Just War Theory Blog, 14 November 2005; Y. Dinstein, ‘The icrc Customary International Humanitarian Law Study’ (2006) 82 ils 99–​112 at 102. However, the use of verbal acts was also positively reviewed, see e.g. Bothe, ‘Some Reflections on the icrc Study’, 156. 514 Nicholls, ‘The Humanitarian Monarchy Legislates’, 238 (statements made at the meetings of international organisations and conferences); Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 103–​4 (noting that not all military manuals used by the Study are authentic manuals). 515 Parks, ‘The icrc Customary Law Study’, 208–​10; T. L. H. McCormack, ‘An Australian Perspective on the icrc Customary International Humanitarian Law Study’ (2006) 82(1) ils 81–​97 at 93. See also Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 221 (claiming that the identification of Rule 73 on the prohibition of biological weapons was based on a policy position ‘that was not articulated with the specific battlefield use of the weapon in mind’). 516 See e.g. Nicholls, ‘The Humanitarian Monarchy Legislates’, 239; Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 203, 206 (see further with regard to Rule 82 at 231; with regard to Rule 86 at 233–​4). 517 Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 107. 518 Nicholls, ‘The Humanitarian Monarchy Legislates’, 235–​6; MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1233. But see also the positive review by Bothe, ‘Some Reflections on the icrc Study’, 174; J. Liang, ‘On the Method of Rulemaking of Customary ihl: With Comments on the icrc’s Customary ihl’ (2008) 10(1) Journal of Southwest University of Political Science and Law 68–​75 at 72. 519 With regard to Rules 153, 155 and 156, see Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 257–​60.

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In several instances, it was claimed that the Study does not take a lack of state practice, or the existence of contrary state practice, into account regarding the Rules that the Study identifies to be applicable in non-​international armed conflicts.520 For example, when questioning the customary status of Rule 35, George Aldrich observed that the Study ignores concerns of states during the 1974 to 1977 diplomatic conference that certain provisions discussed for Additional Protocol ii would restrict their sovereignty, which finally led to the adoption of Article 3 ap ii.521 David Turns stressed a lack of evidence of state practice for the applicability of Rules 72 and 77 in non-​international armed conflicts.522 Another critique was related to the concepts of persistent objector and specially affected states. Besides claims that the Study confuses these concepts,523 reviewers held that, by ignoring the two concepts, the Study did not sufficiently assess the practice of some states significantly concerned by the Rules in question or overestimates the practice of smaller states.524 Furthermore, the consideration of icrc practice as practice valid for the formation of customary law525 and the practice of ngo s as ‘other practice’ was subject to criticism.526 Dieter Fleck, on the other hand, appraised the consideration of the practice of these actors as supportive for the implementation and compliance of existing rules.527 Apart from the sources of practice, the collected practice itself was also subject to criticism. Timothy McCormack, for instance, questioned the actuality of the practice. As he had contributed to the Study as a rapporteur on the national practice of Australia, he revealed that the national research teams had already handed over their reports of state practice in 1998.528 Although the 520 See e.g. Parks, ‘The icrc Customary Law Study’, 212; Nicholls, ‘The Humanitarian Monarchy Legislates’, 239, 242. 521 G. H. Aldrich, ‘Customary International Humanitarian Law: An Interpretation on Behalf of the International Committee of the Red Cross’ (2006) 76(1) British Yearbook of International Law 2005 503–​24 at 512. 522 Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 220, 226. 523 Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 109. 524 Anderson, ‘My initial reactions to the icrc Customary International Humanitarian Law Study’; Scobbie, ‘The approach to customary international law in the Study’, p. 36. 525 Claude, ‘Comments on the icrc Study on Customary International Humanitarian Law’, 446; Nicholls, ‘The Humanitarian Monarchy Legislates’, 241. 526 Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 102–​3. 527 Fleck, ‘International Accountability for Violations of the Ius in Bello’, 180–​1 (see also Fleck’s review regarding the obligation to respect and to ensure respect of ihl at 181–​91, where he notes that the Study could even go further and take into account all the soft law available). 528 McCormack, ‘An Australian Perspective’, 83.

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icrc emphasised that it had considered the developments in state practice up to the end of 2002, he doubted that the icrc could substitute the national research teams.529 McCormack noted that new state practice emerged after 2002, which could have led to different results on the identification of customary ihl.530 Such a different result was drawn, for example, by David Turns with regard to Rule 75 on the prohibition of the use of riot-​control agents as a method of warfare.531 For reasons of transparency, it was criticised that the Study considered state practice from the icrc archives, since this practice is not publicly accessible.532 In addition to the (sources of) practice used by the Study, its recourse to the jurisprudence of international courts and tribunals was subject to critique. Robert Cryer problematised that the Study attached great importance to the jurisprudence of international tribunals per se and did not raise concerns about some of the decisions it relies on.533 As an example, he states that the Study based its conclusions on an obiter dictum held by the icty in Kupreskić with regard to Rule 146 on reprisals targeting the civilian population outside of occupied territory. According to Cryer, Kupreskić is one of the most controversial decisions from the icty, thus illustrating the concerns Cryer has with the decisions the Study draws upon.534 Heike Krieger submitted that the numerous cases of the European Court of Human Rights cited by the Study concern situations of normal governmental functions under the rule of law and cannot be applied to situations of armed conflicts without further explanations.535 In addition, she noted that the decisions of the European Court of Human Rights rely on the European Convention on Human Rights, thus on an European ordre publique, and that the reliance on those decisions could lead to an imposition of human rights law via customary ihl on states not bound to the European Convention on Human Rights or similar human rights standards.536 5 29 Ibid. 530 Ibid. 531 Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 224. 532 Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 104–​5. 533 Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 252–​3. 534 Ibid, 255–​6. 535 H. Krieger, ‘A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the icrc Customary Law Study’ (2006) 11(2) jcsl 265–​91 at 284–​ 6. See also J. Liang, ‘国际人道法研究的新成果 –​ 《习惯国际人道法》 [Customary International Humanitarian Law –​The New Findings in the Study of International Humanitarian Law]’ (2008) 20(1) Academic Research 68–​71 at 71. 536 Krieger, ‘A Conflict of Norms’, 286–​9.

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Overall, the academic criticism of the Study’s methodology is contradictory in some respects. The authors differentially criticised the methodology as too progressive or too conservative, and rejected or welcomed the use of certain sources of state practice. This ambivalence is due to the large disagreement on how to identify customary international law that prevailed at the time of the Study’s publication.537 The extent to which this affects the authority of the Study is discussed below.538 3.1.2 Formulation of the Rules There was some discussion that the Study relied too much on treaty-​based rules for the formulation of the Rules, in particular on provisions of Additional Protocol i, which were a simplified reproduction of the treaty rules in many instances. It was claimed that this simplification could cause deviations from the content of the treaty rules concerned.539 Kenneth Anderson, for instance, noted that the formulation of Rule 54 does not provide for exceptions and is thus more restrictive than its counterpart Article 54 ap i, which contains several exceptions.540 Likewise, Daniel Bethlehem observed that Rules 23 and 24 in comparison to Article 58 (a) and (b) ap i, and Rules 4 and 5 in comparison to Article 43 (1) ap i, omit specific words for no apparent reason.541 Presuming that the simplification of rules in the Study is motivated by a belief that rules of customary international law are in general less complex than rules of treaty law, George Aldrich pointed out that complexity in the formulation of treaty rules is often crucial in order to achieve consensus or a majoritarian vote for the adoption of a treaty.542 He warned that by simplifying those treaty rules the Study’s authors ‘create problems they probably do not realize.’543 In this context, reviewers in particular emphasised the risk of legal uncertainty if the content of rules of customary and treaty law diverge

537 I. Bantekas, ‘Reflections on Sources and Methos of International Criminal and Humanitarian Law’ (2006) 6(1) International Criminal Law Review 121–​ 36 at 130; M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (cup, 2005), pp. 417–​24. For further discussion, see Chapter 3, at 1. 538 See in this Chapter 3.4.5. The extent to which the Study has contributed to the development of a uniform approach to the identification of customary international law is discussed in Chapter 3. 539 See e.g. Bethlehem, ‘The methodological framework of the Study’, p. 9. 540 Anderson, ‘My initial reactions to the icrc Customary International Humanitarian Law Study’. See on Rule 106 also Aldrich, ‘Customary International Humanitarian Law’, 522–​3. 541 Bethlehem, ‘The methodological framework of the Study’, pp. 10–​3. 542 Aldrich, ‘Customary International Humanitarian Law’, 507. 543 Ibid.

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for no apparent reason. Consequently, the normative content of rules could be questioned so that the standard of legal protection could be reduced or undermined.544 Michael Bothe, on the other hand, stressed the advantages of the simplified formulation. He submitted that generality and shortness could help to achieve uniformity, since detailed provisions generally increase the possibility of discrepancies in state practice.545 Yet, he also noted that, because of the simplification, important details had been omitted in the formulation of the Rules and were only dealt with in the commentary to the Rules.546 The criticisms of the Rules’ formulation must be seen against the background that, to date, there is no established practice as to how rules of customary international law are to be formulated. It is understandable that the Study’s authors largely based the formulations of the Rules on treaty law. At the same time, it is reasonable that some rules are reproduced in a simplified form and not in the same way as their complex counterparts in treaty law, if, for example, it cannot be ascertained in state practice that in particular those states that are not parties to a treaty fully comply with these rules. Usually, the commentary to the Rules explains the differences in the formulation.547 Moreover, the criticism seems to be partly aimed not so much at the formulation of the Rules than at the methodological question of how conflicts of norms between customary international law and treaty law are to be resolved.548 3.1.3 Predictions about the Study’s Role In various academic reactions to the Study, particularly based on the criticism of the Study’s methodology, the possible impact of the Study on (customary) international law was discussed. George Aldrich, for example, observed that the methodological approach was a threat to the credibility of the entire Study.549 More specifically, Leah Nicholls concluded that parts of the Study 544 See e.g. MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1225; Bethlehem, ‘The methodological framework of the Study’, pp. 10–​3. 545 Bothe, ‘Some Reflections on the icrc Study’, 161. 546 Ibid. Heike Krieger, e.g., points out that Rule 104 not expressly includes a limitation clause although the commentary argues for permissible restrictions, see Krieger, ‘A Conflict of Norms’, 281–​2. 547 E.g. the commentary to Rule 54, the formulation of which was criticised by Kenneth Anderson, see Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. 192–​3. 548 On the role of conflicts of norms and the importance of methodology for the authority of the icrc’s interpretations and law-​ascertainments, see in this Chapter, at 6.3.1. 549 Aldrich, ‘Customary International Humanitarian Law’, 507.

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could only be seen as de lege ferenda.550 The authors of the Study, and more generally the icrc, were alleged to have used the imprecision of international customary law to manipulate the law.551 Zhipeng He predicted that the Study would only have a limited effect, because international courts and tribunals were not empowered to evoke it as a source of law and basis of sanctions.552 Hays Parks claimed that the icrc sought to push its own agenda with regard to the Rules on incendiary weapons553 and on exploding bullets.554 Related to the approach to use treaties as evidence of state practice, the intention behind the Study was suspected to give non-​universally ratified treaties universal validity via customary international law –​particularly regarding controversial rules of Additional Protocol i.555 Yoram Dinstein doubted the success of this approach since he expected that non-​parties would be even more likely to distance themselves from treaties as a result of the Study.556 He concluded that ‘far from bridging over the present abyss, the Study will only drive the two sides of the “Great Schism” farther away from each other.’557 On the other hand, much of the criticism indicates that the Study was taken very seriously and was assumed to play a role in the question of what comprises customary ihl. Moreover, despite the numerous criticisms of the Study coming from academia, conclusions that the Study would not become an authoritative statement of law or useful to settle issues of customary law in practice clearly formed a minority opinion.558

5 50 Nicholls, ‘The Humanitarian Monarchy Legislates’, 223. 551 Ibid, 238 (speaks of ‘political reasons’); Claude, ‘Comments on the icrc Study on Customary International Humanitarian Law’, 447–​8. 552 Z. He, ‘习惯国际人道法：成就与问题 [Customary International Humanitarian Law: Achievements and Problems]’, in Y. Guo and Z. Huang (eds.), 国际人道法前沿问 题研究 [Research on the Cutting-​edge Issues of International Humanitarian Law] (China University of Political Science and Law Press, 2012), p. 34. 553 Parks, ‘The icrc Customary Law Study’, 210. 554 Ibid, 211. 555 See e.g. Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 110; MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1224–​5. 556 Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 110. 557 Ibid. See also Scobbie, ‘The approach to customary international law in the Study’, p. 34 (who notes that the Study’s approach reverses the burden of proof of customary law with regard to the Additional Protocols). 558 See e.g. Anderson, ‘My initial reactions to the icrc Customary International Humanitarian Law Study’ (who, however, at the same time declared that the Study ‘is a magnificent and pathbreaking work of scholarship. And very large parts of it are both right in substance and framed in such a way as to make it accessible in practical legal contexts.’).

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On the contrary, in many reviews, legal scholars emphasised the Study’s significance for legal practice,559 legal scholarship,560 and the development of ihl.561 Many reviewers, who critically discussed the Study, emphasised that their criticism only applied to specific aspects of the Study and that it was not directed at the Study as a whole.562 It is noteworthy that some reviewers who criticised the Study for being vague or too ambitious in places contradicted themselves when expressing discontent that the Study had omitted some rules, which certainly would have added vagueness or ambitiousness to the Study. David Turns, for example, stated that ‘one could have expected the icrc to analyse the effects of nuclear weapons in the context of the jus in bello’ after criticising that some of the Rules in the Study only seemed to have specified general Rules already embraced by the Study.563 Ian Scobbie, who criticised various aspects of the Study’s methodology, expressed his surprise that the Study did not address the effect of the Martens Clause,564 the legal significance of which is highly controversial.565 3.1.4 Responses by Author of the Study, Jean-​Marie Henckaerts In all his replies to the criticism on the Study, Jean-​Marie Henckaerts stressed that the Study was undertaken due to its mandate given by the International Conference of the Red Cross and Red Crescent,566 and that all states have a vote at this Conference.567 He highlighted the motivation of the Conference’s request to the icrc, which was based on the massive violations of ihl in the armed conflicts in the former Yugoslavia and Rwanda, and the legal gaps revealed by these armed conflicts, in particular regarding non-​international armed conflicts.568 Henckaerts affirmed that the icrc took the Conference’s 5 59 Meron, ‘Revival of Customary Humanitarian Law’, 833. 560 MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1217. 561 P. Rowe, ‘The Effect on National Law of the Customary International Humanitarian Law Study’ (2006) 11(2) jcsl 165–​77 at 165. 562 See e.g. Krieger, ‘A Conflict of Norms’, 277–​ 80; Aldrich, ‘Customary International Humanitarian Law’, 522–​3; Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 263. 563 Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 234–​5. 564 Scobbie, ‘The approach to customary international law in the Study’, p. 18. 565 For the legal significance of the Martens Clause, see Chapter 4, at 5. 566 J.-​M. Henckaerts, ‘icrc’s Jean-​Marie Henckaerts responds to my comments on icrc customary law study’, Kenneth Anderson’s Law of War and Just War Theory Blog, 24 January 2006. 567 J.-​M. Henckaerts, ‘Customary International Humanitarian Law: A Rejoinder to Judge Aldrich’ (2006) 76(1) British Yearbook of International Law 2005 525–​32 at 525. 568 Ibid.

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request very seriously and that the Study was written with accuracy in a scientific manner, for which external governmental and academic experts were consulted.569 Henckaerts made a concerted effort to demonstrate how concerns that emerged from expert consultations were integrated into the Study. For example, he assured Yoram Dinstein –​who had taken part in the consultations to the Study as an expert and who had noted that his concerns regarding the practice of Israel had not been implemented –​that the experts’ considerations had indeed been taken into account and that the Study’s authors had agreed on many of them.570 In connection with the criticism of the formulation of certain Rules made by George Aldrich, Henckaerts pointed to the fact that the consulted experts had expressed no reservations.571 Likewise, he justified the inclusion of the Rules on weapons in the Study by reference to the expert consultations.572 Regarding the criticism on the Study’s methodology, Henckaerts particularly reacted to claims concerning the use of states’ verbal acts as a source of practice. He insisted that an accurate survey of customary ihl cannot merely be based on a description of what states ‘actually do in actual wars’, but that verbal acts have to be taken into account due to their impact on ‘how battlefield practice has to be looked at’.573 He rejected the reproach that the Study only relies on states’ verbal acts and argued that often what has been identified as verbal acts, such as military orders or manuals, describes state practice in actual wars.574 When responding to criticism relating to the use of icrc practice, he cited decisions of the icty, in which the role of the icrc for the development of customary ihl was highlighted. He also stressed that the wording of Article 38 (1) (b) icj Statute does not require the practice used for the identification of customary law to be practice of states.575 Regarding the practice of other 569 Ibid, 525, 532; Henckaerts, ‘icrc’s Jean-​Marie Henckaerts responds to my comments on icrc customary law study’. 570 J.-​M. Henckaerts, ‘The icrc Customary International Law Study: A Rejoinder to Professor Dinstein’ (2007) 37 Israel Yearbook on Human Rights 259–​70 at 259. 571 Henckaerts, ‘A Rejoinder to Judge Aldrich’, 526–​7. 572 Ibid, 530–​1. 573 Henckaerts, ‘icrc’s Jean-​Marie Henckaerts responds to my comments on icrc customary law study’. 574 Ibid. 575 Henckaerts, ‘A Rejoinder to Professor Dinstein’, 261–​2 referring to icty, Prosecutor v Simić et al. (Decision on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness) Case No it-​95-​9-​p t (27 July 1999) para. 46 (fn. 9) and to

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non-​state actors, Henckaerts clarified misunderstandings relating to the term ‘other practice’ and its relevance for the identification of customary ihl.576 Finally, he rejected the allegation that the Study presented all of Additional Protocol i as customary law,577 and at the same time referred to decisions by national courts to demonstrate that the Study’s conclusion that Article 51 (3) ap i, including the phrase ‘and for such time as’, is custom has found acceptance in legal practice.578 In sum, Henckaerts primarily sought to justify the methodological approach taken by the Study and to clarify misunderstandings by bringing the International Conference’s request for the Study to the fore. In particular, he seemed to want to avoid the impression that the Study went beyond existing law.579 His emphasis on the Conference’s request and the participation of government experts can be seen as an attempt to differentiate the Study from purely academic works. It is also striking that Henckaerts did not retract the Study’s methodology and results, which indicates a strong position of the icrc in academic discourse. The various authors did not reply to Henckaerts’ responses, which thus presented the final say on the Study in academic discourse. Selective Use in the Jurisprudence of International Courts and Tribunals Although the Study was only published in 2005, it has found its way into the jurisprudence of international courts and tribunals, in particular the icty. Already before the Study was officially released, the Hadžihasanović Appeals Chamber cited the Study in a decision on an interlocutory appeal. The presiding Judge, Theodor Meron, was involved in the preparation of the Study as a member of the steering committee and research team. Consequently, he probably had access to the Study before its official publication. Although all references were made to the Study’s Volume i presenting the Rules, the Chamber 3.2

5 76 577

5 78 579

icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​a r72 (2 Oct. 1995) para. 109. Henckaerts, ‘A Rejoinder to Professor Dinstein’, 262–​3. Henckaerts, ‘icrc’s Jean-​Marie Henckaerts responds to my comments on icrc customary law study’. In this context, Henckaerts also states that the icrc had preferred to be mandated to prepare a report on non-​international armed conflicts only, but that this proposal was rejected by some states, so that the Study took into account the customary nature of rules of Additional Protocol i too, see Henckaerts, ‘A Rejoinder to Judge Aldrich’, 525–​6; Henckaerts, ‘A Rejoinder to Professor Dinstein’, 260–​1. Henckaerts, ‘A Rejoinder to Professor Dinstein’, 268. See e.g. Henckaerts, ‘A Rejoinder to Judge Aldrich’, 526, 530.

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mostly confined itself to statements and footnotes in the commentary to the Rules referring to state practice.580 For instance, it relied on the Study to prove that the prohibition of destruction of property of an adversary is contained in numerous military manuals applicable in international and non-​international armed conflicts,581 or that the protection of cultural property is contained and specified in many military manuals and legislation of numerous states.582 Without Judge Meron, the Hadžihasanović Trial Chamber then again referred to the Study, but to Volume ii in particular. For instance, when examining whether Article 3 (b) icty Statute embraces acts of partial destruction, the Chamber cited many military manuals and national criminal codes from the Study’s Volume ii.583 However, it also referred to Rule 50 and the commentary thereon to argue that wanton destructions do not need to be committed within the context of military action to fall under Article 3 (b) icty Statute, but that it is sufficient for it to be closely related to the hostilities.584 Likewise, in finding that the taking of war booty and the requisition of property for military use may constitute limitations to the offence of plunder of public or private property under Article 3 (e) icty Statute, the Trial Chamber cited state practice from the Study’s Volume ii.585 However, based on the commentary to Rules 49 and 51 in Volume i, it concluded that these exceptions could not be identified for non-​international armed conflicts, so that national law would be decisive.586 The Stakić Appeal Chamber relied on the Study, among other legal materials, to conclude that deportation as a crime against humanity under Article

580 icty, Prosecutor v Hadzihasanovic and Kubura (Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal) Case No it-​01-​47-​ ar73.3 (11 March 2005) paras. 29–​30, 38 and 45–​46. But cf. Nicholls, ‘The Humanitarian Monarchy Legislates’, 250–​1 (who observes that the Appeals Chamber was more interested in the parameters of the Rules rather than state practice). However, also note in this context Meron, ‘Revival of Customary Humanitarian Law’, 834 (stating that: ‘[i]‌n what may be symptomatic of future practice, the appeals chamber cited indications of practice demonstrated by the study, rather than the black-​letter rule that the study’s authors based on those indications. In my view, this approach is prudent’). 581 icty, Prosecutor v Hadzihasanovic and Kubura (Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal) Case No it-​01-​47-​ ar73.3 (11 March 2005) para. 30 (fn. 55). 582 Ibid, paras. 45 (fn. 95), 46 (fn. 99). 583 icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 44 (fn. 101). 584 Ibid, para. 46. 585 Ibid, para. 51 (fn. 112). 586 Ibid, para. 52.

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5 (d) icty Statute requires the transfer of individuals across a state border or, in certain circumstances, a de facto border.587 The Chamber cited Rule 129 to confirm that this provision applies also with regard to conflicts encompassing occupied territories and that the transfer across a border of an occupied territory meets the conditions under Article 5 (d) icty Statute.588 Concerning the value of the Study for the case at hand, the Chamber stated that it is fully cognisant that the icrc study post-​dates the period relevant to the Indictment in the current case. Rule 129 is nonetheless instructive because it demonstrates that, as of the time the crimes at issue in this case were committed, the offence of deportations still required displacement across a border –​though Rule 129 says little about what type of borders satisfy this requirement.589 The Galić Appeals Chamber based its finding that the prohibition of terror against the civilian population as enshrined in Article 51 (2) ap i and Article 13 (2) ap ii is of customary nature on the state practice presented in Volume ii; among them military manuals, national legislation and a response of the US Department of the Army to an inquiry of the icrc.590 Subsequently, the Chamber raised the question of whether the violation of this prohibition entails individual criminal responsibility under customary law.591 The Chamber answered this question in the affirmative, by mainly relying on the state practice from Volume ii.592 In his separate and partially dissenting opinion, Judge Schomburg, however, claimed that there is no opinio juris for criminal responsibility for violations of the prohibition of terror against the civilian population. To substantiate this claim, he quoted the Study’s introduction on the methodology, holding that for the consideration of abstentions from certain conduct as opinio juris, it must be proven that the abstention is based on a legitimate expectation.593 5 87 icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) paras. 289–​99. 588 Ibid, para. 296. 589 Ibid, para. 297. In contrast, in his partly dissenting opinion, Judge Shahabuddeen disagreed with the conclusion that Rule 129 assists in the determination of what customary international law provided at the time of the offence is, see icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) Partly Dissenting Opinion of Judge Shahabuddeen, para. 28. 590 icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) paras. 89–​90. 591 Ibid, paras. 91–​8. 592 Ibid, para. 97. 593 Ibid, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 19.

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Other courts and tribunals relied on the Study as well.594 The International Criminal Court selectively cited the Study in many of its decisions. For instance, in Lubanga Dyilo, it relied on Rule 137 to argue that children must not be allowed to take part in hostilities in international and non-​international armed conflicts.595 In Ntaganda, the Court based its findings that the prohibitions on rape and (sexual) slavery form part of customary ihl in international and non-​ international armed conflicts on the Study.596 In Katanga, the Court relied on Rule 10 when it stated that civilian objects lose their protection only so long as they are used as military objects.597 In Bemba Gombo, the International Criminal Court referred, inter alia, to several Rules of the Study for its finding that the definition of civilian population in Article 50 ap i reflects customary ihl and that the notion of civilian population in Article 7 Rome Statute ‘must be construed in a manner which does not exclude other protected persons.’598 Likewise, the Special Court for Sierra Leone selectively relied on the Study. For instance, in Fofana and Kondewa, the Appeals Chamber quoted the commentary on Rule 52 for defining the prohibition of pillage.599 In the same judgment, the Chamber cited the Study’s introduction for the prerequisites of the formation of customary international law, as elaborated by the International 594 Regarding the use of the Study in the jurisprudence of the International Court of Justice, in Jurisdictional Immunities of the State, Judge Cançado in his dissenting opinion relied on Rule 95 for the prohibition of enslavement and the Study’s definition of enslavement, as well as on Rule 150 and the commentary thereon to argue for the existence of a right of individuals to reparation in international law, see icj, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment, icj Rep 2012, p. 99, Dissenting Opinion of Judge Cançado Trindade, p. 179, para. 246. The African Court of Human and Peoples’ Rights, the Special Tribunal for Lebanon and the International Tribunal for the Law of the Sea have not had the opportunity to pronounce on issues of customary ihl, see Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1876–​84. 595 icc, Prosecutor v Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) Case No icc-​01/​04–​01/​06 A 5 (1 December 2014) para. 327. 596 icc, Prosecutor v Ntaganda (Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) Case No icc-​01/​04-​02/​06-​1707 (4 January 2017) para. 46. 597 icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​ 01/​04-​01/​07-​3436 (7 March 2014) para. 893. 598 icc, Prosecutor v Bemba Gombo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​05-​01/​08-​3343 (21 March 2016) paras. 152 (fn. 342), 156 (fn. 353). See also icc, Prosecutor v Ntaganda (Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) Case No icc-​01/​04-​02/​06-​1707 (4 January 2017) para. 37 (fn. 77). 599 scsl, Prosecutor v Fofana and Kondewa (Judgment) Case No scsl-​04-​14-​A (28 May 2008) para. 404.

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Court of Justice in the North Sea Continental Shelf cases.600 In Sesay, the Trial Chamber referred to the commentary on Rule 6 for the principle that in case of doubt, an individual should be presumed to be a civilian.601 In addition, it quoted the Study’s observation in the commentary to Rule 33, including the presented evidence of state practice on the prohibition against attacks on peacekeeping personnel, arguing that no official contrary practice was found, but that attacks have generally been condemned by states.602 The Eritrea-​Ethiopia Claims Commission referred to the Study for its conclusion that Article 54 (2) ap i has become a rule of customary ihl. However, at the same time, it noted that it ‘need not, and does not, endorse’ the Study’s conclusion that a broader customary prohibition than Article 54 (2) ap i exists.603 The European Court of Human Rights, in Margus, involved Rule 159 on the granting of amnesty in non-​international armed conflicts. The Court introduced the Study by highlighting that the icrc was mandated by the states at the 26th International Conference of the Red Cross and Red Crescent to compile the Study.604 Moreover, the Study was further referred to by the Court for its practice set out in Volume ii,605 in addition to the Geneva Conventions or the Additional Protocols606 and by individual judges in their dissenting opinions.607 6 00 Ibid, para. 405 (fn. 786). 601 scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) para. 86 (fn. 178). See also scsl, Prosecutor v Fofana and Kondewa (Judgment) scsl-​04-​14-​T (2 August 2007) para. 135. 602 scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009), para. 216 (fn. 389). 603 Eritrea-​Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims, 19 December 2005, Reports of International Arbitral Awards, vol. xxvi, pp. 291-​349 para. 105 (fn. 23). 604 ECtHR, Case of Marguš v Croatia, Appl. No 4455/​10, Judgment (27 May 2014) para. 45. 605 ECtHR, Case of Van Anraat v Netherlands, Appl. No. 65389/​09, Decision on Admissibility (6 July 2010) para. 40. 606 See e.g. ECtHR, Case of Tagayeva and Others v Russia, Appl. No 26562/​07, Judgment (13 April 2017) paras. 468-​472; ECtHR, Case of J. and Others v Austria, Appl. No 58216/​12, Judgment (17 January 2017) para. 14 (fn. 54). 607 See e.g. ECtHR, Case of Kononov v Latvia, Appl. No 36376/​04, Judgment (24 July 2008) Joint Dissenting Opinion of Judges Fura-​Sandström, Davíd Thór Björgvinsson and Ziemele, para. 10 (fn. 11) (citing the Study to prove that a customary prohibition already existed at the time of the injustice before 1949 in the absence of gc and ap); ECtHR, Case of Janowiec and Others v Russia, Appl. No 55508/​07 and 29520/​09, Judgment (21 October 2013) Joint Partly Dissenting Opinion of Judges Ziemele, de Gaetano, Laffranque and Keller, para. 27 (citing Rule 158 when stating that under costumary ihl, ‘[s]‌tates have an obligation “to

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The Inter-​American Court of Human Rights mentioned the Study for the first time in a judgment in 2011.608 However, as Marco Milanovic and Sandesh Sivakumaran show, from that time on, in numerous cases, the Court has cited the Study as the sole reference for rules of customary ihl without undertaking its own independent analysis.609 The Court also referred to the Study the same way as to treaty law.610 As the analysis of the jurisprudence of international courts and tribunals reveals, the Study was used only selectively in most decisions. Furthermore, the Study was often not cited alone but alongside other sources, such as the Geneva Conventions and Additional Protocols,611 or the icrc Commentaries thereon,612 and especially next to case law.613 Unlike the Pictet Commentaries and the ap Commentary, the Study was not used to establish international criminal law. However, this does not lead to the conclusion that the Study has been seen as less trustworthy in the jurisprudence of international courts and

investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects”’.). 608 IACtHR, Case of Gelman v Uruguay, Judgment (Merits and Reparations), iachr Series C No 221 (24 February 2011) para. 210. Before, it was only cited in a concurring opinion of Judge Cançado Trindade in IACtHR, Case of Miguel Castro-​Castro Prison v Peru, Judgment (Merits, Reparations and Costs) iachr Series C No 160 (25 November 2006). 609 Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1881-​2 citing, inter alia, IACtHR, Case of the Massacres of El Mozote and Nearby Places v El Salvador, Judgment (Merits, Reparations and Costs), Series C No. 253 (25 October 2012) para. 141; IACtHR, Rochac Heranández et al. v El Salvador, Judgment (Merits, Reparations and Costs), Series C No. 285 (14 October 2014) para. 109; IACtHR, Case of the Santo Domingo Massacre v Colombia, Judgment (Preliminary Objections, Merits and Reparations), Series C No. 259 (30 November 2012) para. 187. 610 See e.g. IACtHR, Case of the Santo Domingo Massacre v Colombia, Judgment (Preliminary Objections, Merits and Reparations), Series C No. 259 (30 November 2012) paras. 212–​4, 216, 234, 271–​2. 611 See e.g. ECtHR, Case of J. and Others v Austria, Appl. No 58216/​12, Judgment (17 January 2017) para. 14 (fn. 54); icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​18-​T (24 March 2016) para. 5949 (fn. 20405); icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 800 (fn. 1839). 612 See e.g. ictr, Prosecutor v Bagosora and Nsengiyumva (Judgment) Case No ictr-​98-​41-​A (14 December 2011) para. 729 (fn. 1680); icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) para. 2066 (fn. 7110). 613 See e.g. icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 46 (fn. 104); icty, Prosecutor v Karadžić (Judgment) Case No it-​95-​5/​ 18-​T (24 March 2016) para. 5949 (fn. 20404); icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​01/​04-​01/​10-​465-​Red (16 December 2011) para. 172 (fn. 398); scsl, Prosecutor v Taylor (Judgment) scsl-​03-​01-​T (18 May 2012) para. 411 (fn. 1013).

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tribunals than the Commentaries. When the Study was released in 2005, the icty in particular had already developed a significant amount of case law on customary ihl and international criminal law was well developed. The fact that the Study has nevertheless been cited next to case law or other sources for the ascertainment of rules of ihl demonstrates that judges considered the Study to have added value, for instance a reinforcing effect.614 Judge Meron explained, with regard to the above-​cited decision of the Hadžihasanović Appeals Chamber, that [a]‌lthough the relevant principles had already been articulated in earlier decisions by icty [chambers], the 2005 interlocutory appeal drew support for these principles from the icrc study.615 As mentioned above, this decision made particular recourse to the state practice compiled by the Study.616 In this respect, the Study has offered an opportunity for international courts and tribunals to avoid criticism regarding a lack of proper analysis of state practice that had often been formulated towards the finding of rules of customary international law by judicial institutions.617 Moreover, the use of the Study was not limited to the evidence of state practice, but also included the Rules, the commentary thereon and the Study’s introduction on the methodological approach. Over time, the Study was also cited on its own without any independent assessment and ‘used in a more authoritative manner that transcends “mere” academic authority or a collection of practice’.618 Accordingly, despite the criticism from academia, it seems apparent that the Study is accepted by international courts and tribunals. Thus, the icrc achieved its aim to support international criminal tribunals in the application of ihl. 6 14 Hakimi, ‘Custom’s Method and Process’, pp. 160–​1. 615 Meron, ‘Revival of Customary Humanitarian Law’, 834. 616 See also icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) paras. 89–​95 and in particular fn. 300 (where the Chamber states that ‘[s]‌everal of the above references to military manuals and national legislation were extracted from’ the Study’s volume ii). 617 See e.g. J. Ackerman and E. O’Sullivan, Practice and procedure of the International Criminal Tribunal for the Former Yugoslavia: With Selected Materials from the International Criminal Tribunal for Rwanda (Kluwer Law International, 2000), p. 26; L. Moir, The Law of Internal Armed Conflict (cup 2002), pp. 140–​1; T. Meron, Human Rights and Humanitarian Norms as Customary Law (oup; Clarendon Press 1991), pp. 36–​7. Cf. also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1877. 618 Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1881–​4.

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A further indication of the Study’s acceptance is the absence of explicit deviations from the Study in the jurisprudence of international courts and tribunals. Only the Eritrea-​Ethiopia Claims Commission slightly critically dealt with the Study when it noted that it ‘need not, and does not, endorse’ the conclusion of the existence of a broader customary law rule.619 However, the decision took place in the same year that the Study was published and George Aldrich was one of the Commission’s members, who had criticised the Study in an journal article620 regarding the same rule the scope of which the Commission questioned in its decision.621 In Đorđević, unlike the Study, the icty assumed that the principle that in case of doubt whether a person is a civilian, that person shall be presumed to be a civilian, which is codified in Article 51 ap i but not in Article 13 ap ii, also applies in non-​international armed conflicts.622 At the same time, the study is the only source the Tribunal relies on for its reasoning.623 The Study was included in the lists of ‘legal authorities’624 and ‘relevant international law’,625 ‘relevant legal framework and practice’,626 and described as ‘authoritative’,627 ‘authority’,628

619 Eritrea-​Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims, 19 December 2005, Reports of International Arbitral Awards, vol. xxvi, pp. 291–​349 para. 105 (fn. 23). 620 See above 3.1. 621 Cf. also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1878. 622 icty, Prosecutor v Đorđević, (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) para. 2066. 623 Cf. also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1878–​9. 624 See e.g. icty, Prosecutor v Halilović (Judgment) Case No it-​01-​48-​T (16 November 2005) Annex C; icty, Prosecutor v Galić (Judgment) Case No it-​98-​29-​A (30 November 2006) Annex B; icty, Prosecutor v Popović et al. (Judgment) Case No it-​05-​88-​A (30 January 2015) Annex E; scsl, Prosecutor v Sesay et al. (Judgment) Case No scsl-​04-​15-​T (2 March 2009) Annex E; scsl, Prosecutor vs Taylor (Judgment) Case No scsl-​03-​01-​T (18 May 2012) Annex C. 625 ECtHR, Case of Korbely v Hungary, App. No. 9174/​02, Judgment (19 September 2008) para. 51; ECtHR, Case of Chiragov and Others v Armenia, Appl. No 13216/​05, Judgment (Merits) (16 June 2015) para. 97; ECtHR, Case of Sargsyan v Azerbaijan, Appl. No 40167/​06, Judgment (Merits) (16 June 2015) para. 95; ECtHR, Case of Tagayeva and Others v Russia, Appl. No 26562/​07, Judgment (13 April 2017) para. 471; ECtHR, Georgia v. Russia (ii), Appl. No 38263/​08, Judgment (Merits) (21 January 2021) paras. 290 and 324. 626 ECtHR, Hanan v Germany, Appl. No 4871/​16, Judgment (Merits and Just Satisfaction) (16 February 2021) para. 80. 627 icty, Prosecutor v Hadzihasanovic and Kubura (Judgment) Case No it-​01-​47-​T (15 March 2006) para. 253. 628 icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​A (22 March 2006) para. 289.

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‘substantial’,629 or referred to as a source representative for the international legal opinion.630 Rejection and Acceptance in State Practice 3.3 Only the US government comprehensively reacted to the Study with a letter to the icrc, to which Jean-​Marie Henckaerts responded. The few reactions to the Study by governments of other states were cautious. However, despite reservations regarding the Study by governments, the Study was taken into account by their judiciaries. Moreover, several states showed a tacit agreement with the Study. 3.3.1 Rejection by the US Government In 2006, the US government released a letter addressed to the icrc president Jakob Kellenberger providing the US government’s initial reactions to the Study written by John Bellinger (Legal Advisor of US Department of State) and William Haynes (General Counsel of US Department of Defence).631 As observed for the criticism of the Study by legal scholars,632 above all, the letter expressed concerns about the Study’s methodology, whether there was sufficient evidence to support the customary character of the Rules, as well as about the formulation of the Rules. The methodological concerns were mainly related to the sources of practice used by the Study. Bellinger and Haynes observed an ambivalence between the methodological approach as presented in the Study’s introduction, which they described as appropriate to assessing state practice, and the application to the identification of the Rules.633 They criticised that the Study relied too much on verbal acts and written materials as opposed to operational state practice during armed conflicts.634 For instance, they claimed that ‘[v]‌irtually none of the evidence of practice cited in support of Rule 78 represents operational practice’.635 Moreover, Bellinger and Haynes claimed that the practice of specially 629 IACtHR, Case of Miguel Castro Castro Prison v Peru, Judgment (Merits, Reparations and Costs) IACtHR Series C No 160 (25 November 2006), Concurring Opinion of the Judge a.a. Cançado Trindade, para. 36 (fn. 256). 630 ECtHR, Case of Korbely v Hungary, App. No. 9174/​ 02, Judgment (19 September 2008) para. 90. 631 Reprinted in J. B. Bellinger and W. J. Haynes, ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’ (2007) 89(866) irrc 443–​71. 632 See in this Chapter, at 3.1.1. 633 Bellinger and Haynes, ‘A US government response’, 444. 634 Ibid, 445. 635 Ibid, 465, 448 (Rule 31), 455, 459–​60 (Rule 45).

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affected states was not sufficiently considered.636 In the context of the analysis of Rule 45, they stated that the Study erroneously qualified specially affected states as persistent objectors. Instead, the practice of these states should have been given more weight in the question of whether a rule of customary law exists at all.637 Further seen as problematic was an inadequate weight given to negative practice, the use of UN General Assembly resolutions, as well as the use of practice of ngo s and the icrc.638 The evidence of state practice provided by the Study was criticised as ‘insufficiently dense’.639 Relating to Rule 31, Bellinger and Haynes stated that the practice ‘is irrelevant is ambiguous or off-​ point’ and that the Study’s analysis lacked attention to detail and context.640 With regard to the Study’s approach to opinio juris, the US government response put forward the criticism that the Study did not separately prove the opinio juris, but merely inferred it from state practice.641 It was criticised that the Study used states’ actions done on the basis of treaty obligations to argue the existence of an opinio juris, which might not be interpreted as an observance of a rule of customary law.642 The evidence of opinio juris was generally seen as lacking.643 Concerning the formulation of the Rules, Bellinger and Haynes alleged the Study was an oversimplified reproduction of complex and nuanced treaty rules and criticised the Rules to be too broad and unconditional.644 Apart from the criticism, the US government’s response appreciated the efforts of the icrc and the Study’s authors, and welcomed the Study’s discussion of the complex and important subject of customary ihl.645 They expressed their hope for a dialogue with the icrc and other actors on the subject.646 However, the US government’s response also made it clear that

6 36 637 638 639 640

6 41 642 6 43 644 645 646

Ibid, 445–​6. Ibid, 455–​7. Ibid, 445. Ibid, 444–​5. Ibid, 451. See also the analysis of Rule 45 at 56 where Bellinger and Haynes claim that the Study wrongly relies on the US Army jag Corps Operational Law Handbook as an authoritative statement of US practice, which is merely an instructional publication, as well as the criticism at 464–​5 (Rule 78) and 469–​70 (Rule 157). Ibid, 446. This criticism was expressed in particular with regard to military manuals, see ibid, 446–​7, 458 (Rule 45), 470–​1 (Rule 157). Ibid, 447, 465 (Rule 78). Ibid, 447, 460–​5 (Rule 78), 466–​7 (Rule 157). Ibid, 443, 471. Ibid, 471.

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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 in fact reflect customary international law. The United States will continue its review and expects to provide additional comments or otherwise make its views known in due course.647 Although the US government’s response was expressly described as ‘initial reactions’ and only discussed four of the 161 Rules presented by the Study, no detailed assessment followed up to the present day.648 Only the DoD Manual –​which does not refer to the Study in any footnote –​contains an explanatory note reiterating the reluctance of the US to accept the Study, as already articulated in the letter written by Bellinger and Haynes: There is no list of treaty provisions (or other codification) that the United States has agreed reflects the entirety of the customary international law of war. In 2005, the International Committee of the Red Cross published a study on customary international humanitarian law (icrc cihl Study), which has been criticized for its methodology and formulation of certain specific rules. The United States likewise has expressed serious concerns about the methodology used in the icrc cihl Study and has stated that it is not in a position to accept without further analysis the Study’s conclusions that certain rules related to the law of war in fact reflect customary international law.649 This explanatory note in the DoD Manual and the initial reactions of the US government are placeholders for further examinations and possibly also lay a foundation for any later objection of the Study if contradicting US interests.650 6 47 Ibid, 444. 648 Only reaffirming proclamations were made, see e.g. the statement of the US delegation before the Sixth Committee of the UN General Assembly on the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, published in unga, Sixth Committee, Summary record of the 8th meeting, UN Doc a/​c .6/​61/​s r.8 (15 November 2006) para. 71 (‘[the] delegation welcomed the [Study] but was concerned about the methodology used and, in particular, questioned the basis for its conclusion that a significant number of rules in the Additional Protocols had achieved the status of customary international law and were applicable to all States, including those not parties thereto. … [The] delegation was also concerned about the conclusion that those provisions had become binding in the case of internal conflicts’). 649 Office of General Counsel Department of Defense, ‘DoD Manual’, para. 19.25. 650 However, note that the entire DoD Manual can be seen as a response to outputs of non-​ state actors, especially the icrc. See Y. Shereshevsky, ‘Back in the Game: International

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Overall, the reactions of the US government must be understood as a rejection of the Study as a whole. However, the extent of the reactions demonstrates that the US government attaches great weight to the Study. Rather than ignoring it or simply stating that it will not accept the Study, the US government started a discussion of the Study and, in particular, of the underlying methodology. Since the Study’s publication, the US has been involved in many armed conflicts and is not party to the 1977 Additional Protocols. The reactions by the US government imply that it sees the Study as having the potential to limit the US’ operational freedom in armed conflicts. Moreover, the criticism of the methodology mainly focused on those aspects that posed a threat to the influence of the US on the formation of customary ihl; namely the downplay of operational practice and the doctrine of specially affected states, as well as the weight given to negative practice and practice by non-​state actors. 3.3.2 Response by the Author of the Study, Jean-​Marie Henckaerts In his response –​which was published in 2007 in the International Review of the Red Cross, right next to the reprinted version of the letter from the US government –​similar to his responses to the reactions from academia,651 Jean-​ Marie Henckaerts emphasised the process underlying the Study, in particular the mandate of the International Conference of the Red Cross and Red Crescent.652 Likewise, he highlighted the thorough research and the consultation of more than 150 governmental and academic experts in the drafting of the Study, which he underlined as ‘the most comprehensive and thorough study of its kind to date.’653 Generally, Henckaerts tried to present the rather critical reaction of the US government in a positive light as he described it as ‘proof of the fact that the US government takes the Study, and international humanitarian law in general, very seriously’,654 and as part of an ongoing dialogue on customary ihl.655 What seems most important, however, is the justification of the methodology and the formulation of the Rules, including the clarification of misunderstandings. For instance, with regard to the criticism on the density of practice,

6 51 652 653 654 655

Humanitarian Law-​Making by States’ (2019) 37(1) Berkeley Journal of International Law 1–​63 at 28. See in this Chapter, at 3.1.4. Henckaerts, ‘A Response to US Comments’, 473–​4, 487. Ibid, 473–​4. Ibid, 474. Ibid, 488.

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Henckaerts stressed that there is no specific mathematical threshold for the extensiveness of practice, but that the required density depends on various factors such as the nature of the Rule in question.656 He pointed out that ‘never before has so much practice been proffered in such a systematic and detailed manner to explain the existence of rules of customary international law’657 and referred to positive feedback by renowned international lawyers to the Study’s collection of practice.658 Reacting to the criticism on the use of resolutions by states in the framework of international organisations and statements of the icrc and ngo s, Henckaerts primarily tried to clear up misunderstandings concerning the weight of these materials for the identification of customary ihl.659 He explained that the resolutions in the framework of international organisations, as well as icrc statements, were not decisive in determining whether a rule is customary law, and that the circumstances of the individual case were always taken into account.660 At the same time, he emphasised the role of the icrc referring to its international legal personality, Article 5 (c) and (g) of the Statutes of the Movement, and a decision of the icty Tadić Appeals Chamber, in which the Tribunal praised the significance of the icrc in the formation of customary ihl.661 Thus, Henckaerts did not resolve the question of whether the practice of the icrc contributes to the formation of customary international law from the icrc’s point of view, but maintained the ambivalence regarding the legal significance of the icrc for the making of international law. Regarding the statements of ngo s, Henckaerts explained that as ‘other practice’ they were not considered for the identification of customary ihl. He added that there were no rejections towards the inclusion of the category of ‘other practice’ by the experts involved.662 Furthermore, Henckaerts clarified the role of treaties and assured that the Study did not assume that a rule is customary ihl merely because it is contained in a widely ratified treaty, but that a cautious approach was applied and that the Study sufficiently considered the practice from non-​parties.663 Regarding the criticism that the Study had not sufficiently considered the 6 56 657 658 659 660 661

Ibid, 475. Ibid, 476. Ibid, 476–​7. Ibid, 478–​80. Ibid, 478. Ibid, 478–​9 referring to icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​a r72 (2 October 1995) para. 109. 662 Henckaerts, ‘A Response to US Comments’, 479–​80. 6 63 Ibid, 480.

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practice of specially affected states, he countered that the judgment of the International Court of Justice in the North Sea Continental Shelf cases, on which the doctrine of specially affected states is based on, cannot be adopted one-​to-​one for ihl, since the doctrine was developed in the area of the law of the sea. Nevertheless, he emphasised the importance of the practice of states particularly involved in armed conflicts.664 When reacting to the criticism on the Study’s approach to opinio juris, Henckaerts rejected the allegation that the Study simply infers opinio juris from practice and defended the Study’s use of military manuals.665 He replied to the objection by the US on the use of teaching manuals as official government positions by arguing that ‘a state will not allow its armed forces to be taught on the basis of a document whose content it does not endorse.’666 Regarding the criticism on the formulation of the Rules, Henckaerts claimed that the description of customary international law necessarily leads to rules that are simpler than detailed treaty law rules.667 To support his claim, he pointed to the fact that complicated negotiations at diplomatic conferences do not exist for customary international law, as well as to the description of customary rules by the International Court of Justice.668 He explained that, therefore, certain issues are dealt with in more detail in the commentary.669 Finally, Henckaerts addressed the broader implications of the Study. The Study demonstrates that a large part of the Rules of the Additional Protocols applies under customary international law and that many areas of ihl now also apply to non-​international armed conflicts via customary international law.670 He claimed that the discrepancy between the law on international and non-​international armed conflicts has largely been dissolved.671 Henckaerts stressed the practice and will of states on which this development is based on, and that this development has been accelerated since the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda.672 Overall, it is striking that Henckaerts has not deviated from the positions of the Study despite the criticism of the US government. On the contrary, Henckaerts used the criticism to strengthen the Study’s positions. However, the icrc has not succeeded in convincing the US government, as is evident from the explanatory note on the Study in the DoD Manual. 6 64 Ibid, 481–​2. 665 Ibid, 482–​3. 666 Ibid, 483. 667 Ibid. 668 Ibid. 669 Ibid. 670 Ibid, 485–​7. 671 Ibid, 487. 672 Ibid, 485–​7.

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3.3.3 Some Reservations and Much Appreciation by Other States In addition to the US government, the governments of the UK, Israel, Germany and Denmark expressed their reservations about (certain conclusions of) the Study. However, these reservations were rather cautious. Already in 2005, in a brief statement at the meeting of national committees on ihl of Commonwealth States in Nairobi, a legal advisor of the UK Foreign and Commonwealth Office expressed some reservations about the Study regarding the methodology and the formulation of the Rules.673 After expounding the position of the UK government on the formation of customary international law,674 he pointed out that sometimes the practice on which the Study relies is not uniform amongst specially affected states and that some of the materials presented by the Study do not constitute state practice. Moreover, he critically observed a misstatement and oversimplification of treaty law. Against this background, the legal advisor concluded that we at least will treat the Rules with some degree of reservation. Overall, we feel that they represent too much of what States should do, rather than what they actually do, ie they state not what the law is but what it should be.675 In 2008, in a discussion in the Sixth Committee of the UN General Assembly on the status of the 1977 Additional Protocols, a UK legal advisor reiterated this position, however, only with regard to the Study’s Volume i. With regard to Volume ii, she stated that it ‘was a valuable research tool which brought together a large amount of material that would otherwise be difficult to locate.’676 In 2010, in its closing submissions in the Baha Mousa Public Inquiry, the UK Ministry of Defence again pointed out that ‘[t]‌he Government has concerns about this study, and in particular the methodology for deciding whether particular rules have entered the corpus of [customary international law].’677 However, it also expressed that the Rules of customary ihl ‘are most

673 Reprinted in K. Kaikobad and others, ‘United Kingdom Materials on International Law 2005’ (2006) 76(1) British Yearbook of International Law 2005 683–​970 at 694–​5. 674 Reprinted in ibid, 695 (he stated that identifying a rule of customary international law is a rigorous process and demanded, inter alia, that the practice must be dense, uniform, practice of states and that the position of specially affected states must be considered). 675 Reprinted in ibid. 676 UN General Assembly, Sixth Committee, Summary Record of the 13th Meeting, UN Doc a/​ c.6/​63/​s r.13 (7 November 2008) para. 61. 677 UK Ministry of Defence, ‘The Baha Mousa Public Inquiry, Closing Submissions on Modules 1 –​3 on behalf of the Ministry of Defence’, 25 June 2010, p. 28. The document is

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conveniently set out and numbered’ in the Study and it accepted that the Rules 47, 87, 90, 91, 99, 118, 121, 122, 127, 128B, and 142 indeed reflect customary ihl.678 The UK government thus softened its restrictive position towards the Study’s Volume i. In 2015, before the Court of Appeal, the Secretary of State referred, inter alia, to Rule 1 when arguing that authorisation for detention exists in non-​ international armed conflict.679 In 2009, the Israeli Ministry of Foreign Affairs briefly stated in its report on the operation in Gaza that Israel does not agree that all of the rules stated in the icrc Customary International Law Study reflect customary international law, but it does agree that it accurately states the principle of distinction.680 In 2013, the second report of the Turkel Commission –​which was established by the Israeli government681 –​referred to the Study’s introduction regarding the methodology to identify customary international law,682 as well as several Rules and the commentary thereon.683 However, when relying on the Study’s conclusion that the provisions of Additional Protocol i relating to the duty to investigate and try perpetrators of violations of the Geneva Conventions and the Additional Protocols, reflect customary international law, the Report stated that [t]‌he Commission accepts this position, despite the fact that some aspects of the icrc’s study have been the subject of criticism (including by Israel), concerning the methodological approach of the study.684

6 78 679 680

681

6 82 683 684

no longer available online but partly quoted in Henckaerts and Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, p. 177. Ibid, pp. 28–​33. Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843, para. 237. Israeli Ministry of Foreign Affairs, ‘The Operation in Gaza (27 December 2008–​18 January 2009) –​Factual and Legal Aspects’, 29 July 2009 accessed 31 August 2023, para. 96 (fn. 70). The document quotes the Study several times, especially Volume ii on practice. The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Second Report: Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law’, February 2013, pp. 33–​5. Ibid, p. 54. The report referred, inter alia, on Rules 1, 119 and 152–​61, see ibid, pp. 60 (fn. 26), 68 (fn. 54), 77 (fn. 83), 78 (fn. 85), 88 (fn. 121), 95–​6 (fn. 139). Ibid, pp. 56–​7 (fn. 15). Note that the first Report of the Turkel Commission solely referred to the Study to substantiate the existence of a ‘consensus that is developing among

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In 2022, in its comment to the International Law Commission’s draft principles on protection of the environment in relation to armed conflicts, Israel reiterated this criticism towards the Study’s methodology ‘and consequently, regarding many of its conclusions.’685 The German Federal Ministry of Defence adopted a note to the Military Manual for the German Armed Forces similar to the DoD Manual, to express its reservation about the Study, and does not cite the Study.686 The Military Manual of the Danish Ministry of Defence cites the Study over 230 times,687 although also it also adopted a note of caution that refers to the criticisms of the Study’s methodology.688 Regardless of these reservations about the Study by governments, the Study was referred to in national legal proceedings in the US,689

685 686

687

688

689

legal experts regarding customary law rules applicable in non international conflict’, see The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Report Part One’, January 2010, p. 49. ilc, Protection of the Environment in Relation to Armed Conflicts, Comments and Observations Received from Governments, International Organizations and Others, UN Doc a/​c n.4/​749 (17 January 2022), pp. 102–​3. Bundesministerium der Verteidigung (Germany), Law of Armed Conflict –​Manual, para. 131 (‘In 2005 the icrc published a comprehensive “Study on Customary International Humanitarian Law”. This study evaluates State practice based on national and international sources, material from the icrc archive and results of expert consultations in order to extrapolate customary rules of loac. It is legally non-​binding. It remains yet to be seen whether it will come to be regarded as a reliable compilation of customary international humanitarian law’). In this regard, see the Manual’s introduction on its ‘Approach to International Law’ highlighting that the Study ‘has provided the starting point for the identification of customary international law within the law of armed conflict’, Danish Ministry of Defence, Military Manual, p. 25. Ibid, para. 5.4.1 (‘This Manual refers to the scihl as an indication of the customary international law nature of rules while giving due consideration to and taking into account well-​ known objections to the validity of the individual rules. Footnote references to the scihl may be seen as an indication that the scihl has identified a rule of importance but should not be taken as a sign that the Manual necessarily reflects the obligation in the area’). Supreme Court, Hamdan v Rumsfeld, Secretary of Defense, et al., Case No 05–​184, 29 June 2006, p. 69 (citing the Study’s commentary on Rule 100 on the definition of ‘regularly constituted court’ in the meaning of Common Article 3); District Court (Eastern District of New York), Oran Almog v Arab Bank, 471 F. Supp.2d 257 (2007) p. 278 (citing the Study for the position that principle of distinction has customary law status); District Court (Columbia), Falen Gherebi v Barack H. Obama, 609 F.Supp.2d 43 (2009), Memorandum Opinion by Judge Walton, pp. 66–​7 (citing the Study for the position that the principle of distinction has customary law status); Court of Military Commission Review, United States of America v Ali Hamza Ahmad Suliman Al Bahlul, 820 F.Supp.2d 1141, No. cmcr 09–​001, Judgment of 9 September 2011, pp. 1165 and 1179 (citing the introduction to the

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UK,690 Germany,691 and Israel.692 The Supreme Court of Israel even explicitly adopted the Study’s conclusion that a rule of customary ihl exists reflecting Article 51 (3) ap i en bloc.693 This is despite the fact that Israel did not accept the

690

691

692

693

Study to underline that Common Article 3 provides a rudimentary framework of minimum standards and does not contain much detail); Court of Appeals (4th Circuit), United States of America v Irek Ilgiz Hamidullin, 888 F.3d 62 (4th Cir. 2018) pp. 67–​8, 71 (referring to the Study for his interpretation of Common Article 3). Serdar Mohammed v Ministry of Defence [2014] ewhc 1369 (qb), paras. 260–​1 (describing the Study as ‘influential’ and citing Rule 99 and the commentary thereon; however, expressing doubts whether the conditions on detention as described by the commentary reflect customary law); Al-​Sirri v Secretary of State for the Home Department and dd v Secretary of State for the Home Department [2012] ewca Civ 1407, para. 64 (referring to Rule 33 when stating that ‘intentionally directed attacks against personnel involved in a peacekeeping mission in accordance with the Charter of the United Nations constitute a war crime’). Der Generalbundesanwalt beim Bundesgerichtshof, Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel W. wegen des Verdachts einer Strafbarkeit nach dem VStGB und anderer Delikte –​Einstellung des Verfahrens gemäß § 170 Abs. 2 Satz 1 StPO, 3 bj s 6/​10–​4 (16 April 2010), pp. 58 (reference to Chapter 14 on War Crimes) 63, 65 (reference to Rules 14 and 15 and the commentary thereon), 67 (reference to Rule 20 and the commentary thereon), and 68 (reference to the introduction for the formation of customary international law); Bundesverfassungsgericht, Beschluss vom 13. August 2013 –​2 BvR 2660/​06, para. 43 (reference to the commentary on Rule 150 for cases in international and national practice in which victims of armed conflict have been awarded compensation by the state responsible; however, neglecting the existence of a customary rule of international law under which individuals are entitled to compensation or reparation from the state responsible for violations of ihl); Bundesverfassungsgericht, Beschluss vom 13. Juli 2018 –​1 BvR 1474/​12, para. 135 (reference to the commentary on Rule 55 when arguing that Article 23 (2) gc iv ensures that humanitarian aid aims solely at alleviating suffering); Bundesgerichtshof, Judgment of 27 July 2017 –​3 StR 57/​17, paras. 25–​6 (relying on Rule 113 for the acceptance of the customary law prohibition of the Mutilation of dead bodies). Supreme Court sitting as the High Court of Justice, Adalah –​The Legal Center for Arab Minority Rights in Israel et al. v goc Central Command, idf et al., Judgment of 23 June 2005, hcj 3799/​02, paras. 20 (reference to Rule 20), 21 (reference to Rule 97) and 24 (Rule 24); Supreme Court sitting as the High Court of Justice, the Public Committee against Torture in Israel et al. v the Government of Israel et al., Judgment of 13 December 2006, hcj 769/​02, paras. 23 (reference to Rules 1, 6 and 7), 29 (Rule 11), 30 (Rule 6), 41 (Rule 19) and 42 (Rule 14 and the commentary to Rule 15); Supreme Court sitting as Court of Criminal Appeals, A. and B. v State of Israel, Judgment of 11 June 2008, CrimA 6659/​06, para. 46 (reference to Rule 128); Supreme Court sitting as the High Court of Justice, Jaber Al-​Bassiouni Ahmed and Others v Prime Minister and Minister of Defence, Judgment of 30 January 2008, hcj 9132/​07, para. 14 (reference to the commentary to Rule 54); Supreme Court sitting as the Hight Court of Justice, Shlomo Valero et al. v State of Israel et al., Judgment of 6 February 2011, hcj 3103/​06, para. 39 (reference to Rule 51 and the commentary thereon). Supreme Court sitting as the High Court of Justice, the Public Committee against Torture in Israel et al. v the Government of Israel et al., Judgment of 13 December 2006, hcj 769/​02, para. 30.

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qualifying phrase ‘and for such time’ of Article 51 (3) ap i as part of customary international law prior to that judgment and during the legal proceedings.694 Other states tacitly agreed with the Study. Governments have supported the dissemination of the Study695 and integrated specific conclusions from the Study into their military manuals.696 Monika Hakimi observed that some states even replicated the precise language of the Study in their national law and military manuals.697 In addition, states’ representatives expressed their appreciation of the Study before the UN General Assembly,698 or expert fora on ihl.699 States relied on the Study’s Rules and methodology in their statements

694 Ibid, para. 12. Cf. also Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 107. 695 See e.g. Switzerland, ‘La pratique suisse relative à la détermination du droit international coutumier’, 2016 accessed 31 August 2023, p. 37 (referring to the usage of the Study by courts and states as ‘interprétation authentique’); Conseil fédéral, 14.021 Message portant approbation des amendements au Statut de Rome de la Cour pénale internationale relatifs au crime d’agression et aux crimes de guerre, 19 février 2014, ff 2014 1973, p. 1989, note 56 (where the Conseil fédéral refers to several Rules and to the icrc’s database of customary international humanitarian law); Conseil fédéral, 14.016 Message concernant l’approbation du Traité sur le commerce des armes, 29 janvier 2014, ff 2014 1485, p. 1512. 696 See e.g. Comando General de las Fuerzas Militares, Manual De Derecho Operacional 2015, pp. 32–​5, 40 (referring to Rules 9, 25, 27, 28, 31, 34, 46 and 70); New Zealand Defence Force, Manual of Armed Forces Law (referring to the Study over 240 times and stating at para. 3.4.7 that ‘[a]‌lthough it has no legal status, this detailed study provides useful material on which an assessment can be made. Rules from the study are referred to in this manual where they considered helpful. Omission of reference to a rule does not mean, however, that the nzdf does not accept the validity of that rule’); Ministerio de Defensa Español, Orientaciones: El Derecho de los Conflictos Armados (Madrid, 2007), p. 8–​4 (referring to Rule 106); Ministère des Armées de la République Française, Manuel de droit des operations militaires, pp. 134–​5, 139, 158, 169, 179, 184 (referring to Rules 1, 7, 11, 14, 15, 43.B, 45, 87–​103, 118–​128, with regard to the Rules on detention, however, it also points out that the customary nature of the principles reflected by the Rules is not always the subject of consensus between states). 697 Hakimi, ‘Custom’s Method and Process’, p. 160. 698 See e.g. the statements of state representatives before the Sixth Committee of the UN General Assembly on the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, published in unga, Sixth Committee, Summary record of the 8th meeting, UN Doc a/​c .6/​61/​s r.8 (15 November 2006), para. 29 (canz group), para. 34 (Nordic countries), para. 48 (Switzerland), para. 63 (Malaysia). 699 See e.g. Norwegian Minister for Foreign Affairs, ‘Opening address at Workshop on International Humanitarian Law and the Protection of Civilians’, Jakarta, 8 November 2010 accessed 31 August 2023. For further positive reactions by states, see cf. Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1872–​3.

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before the International Court of Justice.700 For instance, in his statement on behalf of the Democratic Republic of the Congo, Philippe Sands based his argumentation on the Study, stating that [t]‌he principles I identified in relation to the applicable law are now treated at length in the important new book published last week by the icrc on Customary International Humanitarian Law, where they are addressed in the icrc Rules 50, 51 and 52. These are the international standards which we say were applicable; these are the standards which we say were violated.701 Finally, national Netherlands,703

courts, for Bosnia

instance, in and

Colombia,702 the Herzegovina,704

700 For Belgium’s reliance on the Study, see Public sitting, cr 2012/​3 (13 March 2012) held on Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) accessed 31 August 2023, pp. 22–​25 (Rules 156, 157 and 161); Reply of the Kingdom of Belgium to the question put by Judge Greenwood (28 March 2012) regarding Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) accessed 31 August 2023, para. 8 (the obligation to prosecute and the Study’s methodology to identify customary international law). For Greece’s reliance on the Study, see Written Statement of The Hellenic Republic (3 August 2011) regarding Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) accessed 31 August 2023, para. 38 (Rule 150). 701 Statement by Prof. Sands on behalf of Kongo, Public sitting, cr 2005/​13 (25 April 2005) held on Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) accessed 31 August 2023, p. 32. 702 See e.g. Colombian Constitutional Court, Sentencia, Case No C-​ 291/​ 07 (25 April 2007) pp. 67 and 115, and fn. 118, 124, 132, 135, 138, 147, 167, 177, 178, 183, 185, 186, 188, 189, 192, 193, 194, 196, 200, 201, 202, 203, 204, 205, 206, 208, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 259, 268, 269, 276, 277, 278, 279, 281, 288, 289; Special Jurisdiction for Peace, Case No. 01, Hostage-​taking and serious deprivation of liberty committed by the farc-​e p (26 January 2021), paras. 718 (fn. 1653), 717 (fn. 1651), 767 (1738). For further references to the Study in Colombian case law, see Henckaerts and Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, p. 171. 703 See e.g. District Court of the Hague, 23 March 2009, ecli:nl:rbsgr:2009:bi2444, Prosecutor v Joseph M., paras. 19–​21 (relying on the Study for the conclusion that Common Article 3 and a considerable number of provisions in Additional Protocol ii have developed into norms of customary international law); Court of Appeal of the Hague, 7 July 2011, ecli:nl:ghsgr:2011:bro686, Prosecutor v Joseph M., paras. 16 and 17.1 (inter alia, referring to the Study to provide evidence that the prohibition of outrages upon human dignity, in particular humiliating and degrading treatment (as prohibited in Common Article 3) has a customary law character). 704 See e.g. Court of Bosnia and Herzegovina, Panel, Section i for War Crimes, Case No x-​k r-​ 06/​290, Judgment of 28 November 2007, p. 21; Court of Bosnia and Herzegovina, Panel of

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Sweden,705 the Philippines,706 or South Africa707 relied in their findings on the Study.708 In addition to the visible reliance on the Study, it is noticeable that the Study has influenced state practice in several other ways. For instance, the British government wanted to publish the MoD Manual before the release of the Study.709 Timothy McCormack reported that, due to the Study, national experts became aware of the significance of the state’s own conduct for state practice and opinio juris and that the Study will be an opportunity for states to revisit their own practice.710 Jean-​Marie Henckaerts and Els Debuf assume that the Study led to further ratifications of the Additional Protocols after 2005.711 Apart from the practice of individual states, since 2006 the UN General Assembly refers to the Study in its resolutions on the ‘Status of the Protocols Additional to the Geneva Conventions and relating to the protection of victims of armed conflict’. In the first of these resolutions after the publication of the Study, the UN General Assembly was ‘[w]‌elcoming the significant debate generated by the recent publication of the study … and looking forward to further constructive discussion on the subject.’712 Since then, the UN General

705 706 707 708 709 7 10 711

712

the Appellate Division, Section i for War Crimes, Case No x-​k r-​08/​489, Judgment of 12 November 2010, paras. 66 and 68. Stockholm District Court, Public Prosecutor (on behalf of Behram (Hussein) and ors) v Arklöf ( Jackie) (Judgment) Case No B 4084–​04, ildc 633 (se 2006) (18 December 2006) para. 138. Representatives Lagman v Medialdea [2017] phsc 351 cited in E. Crawford, Non-​Binding Norms in International Humanitarian Law: Efficacy, Legitimacy, and Legality (oup, 2022), p. 216. North Gauteng High Court, Pretorius et al. v The State and Others, 2010 jdr 1275, Judgment of 26 August 2010, p. 39. For an in-​depth analysis of the references to the Study by domestic courts, see also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1884–​7. D. Luban, ‘Military Necessity and the Cultures of Military Law’ (2013) 26(2) ljil 315–​49 at 317 (fn. 9). McCormack, ‘An Australian Perspective’, 84–​6. Henckaerts and Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, p. 183. At the time of the publication of the icrc Study, Additional Protocol i had been ratified by 162 states and Additional Protocol ii by 158 states. Today, Additional Protocol i is ratified by 174, and Additional Protocol ii by 168, states. However, the ratifications after 2005 also include Palestine and the two new states of Montenegro and South Sudan. unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​61/​30 (18 December 2006).

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Assembly has recalled the Study in its resolutions and has appreciated the icrc’s further steps in disseminating and updating the Study.713 3.3.4 Assessment: Success Despite Criticism from the US and Academia States’ reactions to the Study reveal a split picture. On the one hand, some states distance themselves from the Study, pointing, above all, to the underlying methodology. In particular, the reaction of the US government and the response by Jean-​Marie Henckaerts reveal a disagreement on the methodology,714 although Henckaerts tried to demonstrate that the Study’s methodology corresponds to the traditional approach assumed by states. The DoD Manual’s note on the Study clearly indicates that Henckaerts’ response had no effect on the US government’s position. In those states that have explicitly expressed reservations about the Study, the Study has nevertheless been used in national legal proceedings. On the other hand, the majority of states refrained from explicit statements on the Study. Several states have even used the Study in their military handbooks, legal opinions before the International Court of Justice, or national legal proceedings. This suggests that these states implicitly accept the Study despite considerable criticism from the US government and legal scholars. Overall, the narrative that ‘some States have strongly opposed [the Study]’715 is too one-​sided. In fact, only the US government explicitly rejected the Study. The majority of states seem to have accepted the Study or to disagree only with small parts of it. Even the Rules that were explicitly rejected in the US government’s letter to the icrc were adopted in state practice.716

713 unga, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, UN Doc a/​r es/​71/​144 (20 December 2016). See also UN Docs a/​r es/​69/​120 (18 December 2014), a/​r es/​67/​93 (14 January 2013), a/​r es/​63/​125 (15 January 2009). 714 Cf. N. Erakat, ‘The US v. the Red Cross: Customary International Humanitarian Law and Universal Jurisdiction’ (2012) 41(2) Denver Journal of International Law & Policy 225–​72 at 226. 715 See e.g. R. Heinsch, ‘Methodology of Law-​Making: Customary International Law and New Military Technologies’, in D. Saxon (ed.), International Humanitarian Law and the Changing Technology of War (brill, 2013), pp. 19–​20. 716 E.g. the Colombian Military Manual adopted Rule 31, see Comando General de las Fuerzas Militares, Manual De Derecho Operacional 2015; the Danish military manual adopted Rule 45, see Danish Ministry of Defence, Military Manual, pp. 223, 356, 424; the New Zealand military manual adopted Rule 78, see New Zealand Defence Force, Manual of Armed Forces Law; Belgium referred to Rule 157, see Public sitting, cr 2012/​3 (13 March 2012) held on Questions relating to the Obligation to Prosecute or Extradite (Belgium v

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The icrc achieved its objectives with the Study: The Study filled loopholes in ihl, as indicated by the large acceptance of Rule 6 (loss of protection from attack), although the Study lacked evidence for the customary nature of the time element.717 Additionally, the Study seemingly influenced states to ratify the 1977 Additional Protocols and supported national courts in the application of ihl. 3.4 The Study’s Marks of Authority The Study was subject to criticism by states’ governments and in academia. Nevertheless, in the legal practice of international courts and tribunals, as well as the executive and judiciary of many states, the Study was the point of reference for customary ihl rules, their interpretation and state practice.718 This section examines the marks of the Study’s authority. 3.4.1 Expertise One decisive mark of the Study’s authority is the broad expertise it contains. Besides the two authors of the Study, Jean-​Marie Henckaerts and Luise Doswald-​Beck, and staff from the icrc, its compilation involved numerous other experts in ihl from academia and practice from around the globe at different stages during the ten years of preparation.719 Among them were (former) judges at international courts and tribunals (Theodore Meron, Georges Abi-​Saab, Antonio Cassese, Antonio Augusto and Cancado Trindade) and (former) members of the International Law Commission (John Dugard, Milan Sahovic and Djamchid Momtaz).720 In total, over 100 experts were engaged in the preparation of the Study.721 These experts collected and processed practice into 161 Rules of customary ihl from more than 150 states, as well as practice from international organisations, the icrc and ngo s.722

7 17 718 7 19 720 7 21 722

Senegal) accessed 31 August 2023. See in this Chapter, at 3.1.1. Moreover, as indicated by the way of reference in textbooks, the Study found broad acceptance in academia, see Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1890–​3. See ibid, 1866. Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxv-​xxx. For further explanations on the underlying expert process, see in this Chapter, at 3.4.3. Kellenberger, ‘Foreword 2005’, p. xvii. icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007, p. 2.

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This amount of knowledge of practice –​which partly stems from the icrc archives and is not open to the public –​and its processing into Rules of customary ihl are unique.723 Only one other detailed collection of state practice in ihl exists, namely, the annual ‘Country Reports’ by the Yearbook of International Humanitarian Law.724 Those reports cover only state practice of one year, they do not provide an identification of opinio juris and do not formulate rules of customary ihl.725 In addition, other actors have made identifications of customary ihl, especially international courts and tribunals. However, those identifications generally lack a satisfactory analysis of state practice and opinio juris; and are often formulated only for the case at hand.726 In general, only few actors seem in a position to analyse state practice and opinio juris similar to that of the Study.727 Consequently, the Study can hardly be ignored,728 as evidenced in particular by the comprehensive reaction of the US government. The Study filled a gap of knowledge of (evidence of) customary ihl and, as analysed above,729 immediately became the leading source of (evidence of) customary ihl in legal practice.730 The Study’s expertise has been affirmed in different circumstances. It was published with cup, which is renowned for its academic standards. Abdul

723 Aldrich, ‘Customary International Humanitarian Law’, 524; J. K. Kleffner, ‘Sources of the law of armed conflict’, in R. Liivoja and T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (Taylor and Francis, 2016), p. 76. 724 Cf. McCormack, ‘An Australian Perspective’, 86. 725 Cf. ibid. 726 In this regard, see e.g. the criticism of the icty by Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda, p. 163; Ackerman and O’Sullivan, Practice and procedure of the International Criminal Tribunal for the Former Yugoslavia, p. 26. 727 Sivakumaran, ‘Beyond States and Non-​State Actors’, 348–​9. Cf. also the statement by Judge Patricia Wald reflecting on the status of evidence of customary ihl that: ‘it was a shock to me to judge in a system that basically had no precedent or statutory base to rely upon as to what the law was. There were some fairly pithy definitions of war crimes and crimes against humanity in the icty charter based on the Geneva Conventions and Nuremberg principles, but beyond that judges were left pretty much on their own to discern what international customary humanitarian law required’, see P. M. Wald, ‘International Criminal Courts: Some Kudos and Concerns’ (2006) 150(2) Proceedings of the American Philosophical Society 241–​60 at 244. 728 Cf. Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 99; See also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1866. 729 See in this Chapter, at 3.2 and 3.3.3. 730 Cf. Sivakumaran, ‘Beyond States and Non-​ State Actors’, 348–​ 9; Meron, ‘Revival of Customary Humanitarian Law’, 834.

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Koroma, who was a judge at the International Court of Justice at the time of the Study’s publication, wrote a foreword to the Study appreciating its important role for international humanitarian law.731 As analysed above, the Study was subject to criticism from academia and a few states’ governments, which questioned the correctness of the Study and thus also called the expertise into question.732 Some criticism from academia originated even from legal scholars who were involved in the preparation of the Study.733 How did this criticism affect the Study’s authority with respect to expertise? First, the criticism is a sign that the Study’s expertise is being taken seriously.734 It caused not only scholars, but also governments to respond and thus influenced the behaviour of states.735 Hardly any of the reactions from academia, and none of the reactions by states, indicated a rejection of the Study as a whole, but welcomed the Study as a contribution to legal discourse. Moreover, legal views of other actors, which usually enjoy great authority due to their renowned expertise, among others, have been subject to criticism too; but nevertheless became a reference point in legal discourse.736 In comparison, an identification of customary international law that no one takes seriously because of a lack of substantiated expertise is unlikely to be criticised. Critique is an indication of its being seen as warranting serious engagement.737 Second, the criticism petered out, while the usage of the Study in academia and legal practice went on. There was no substantial criticism from academia after 2007.738 On the contrary, the Study has constantly been referred to in 731 A. G. Koroma, ‘Foreword’, in J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law (cup, 2005) xviii-​xix. 732 See in this Chapter, at 3.1 and 3.3. For a discussion of the criticism of the methodology underlying the Study, see in this Chapter, at 3.4.5. 733 Although Dinstein claims that he was only marginally involved, he was responsible for the Israel country report, participated in subsequent consultations and was given the opportunity to comment on earlier drafts of volume i, see Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 100; McCormack, ‘An Australian Perspective’. 734 McCormack, ‘An Australian Perspective’, 91. 735 Cf. Sivakumaran, ‘The Influence of Teachings of Publicists’, 29. 736 Cf. McCormack, ‘An Australian Perspective’, 88–​92 (who points to the storms of criticism of the International Court of Justice’s judgment in Military and Paramilitary Activities in and against Nicaragua regarding the Court’s approach to the formation of customary law). 737 Ibid, p. 91. 738 The criticism from before 2007 only continued to be referred to by some legal scholars, see e.g. Y. Dinstein, Non-​International Armed Conflicts in International Law (cup, 2014), pp. 207–​23; J. F. Murphy, ‘Will-​o-​the-​Wisp? The Search for Law in Non-​International Armed Conflicts’ (2012) 88 ils 15–​39 at 20–​3 (reiterating the criticism of Bellinger and

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academic publications739 and was described as ‘authoritative’.740 In addition, the Study was also referred to by experts in the framework of international organisations, such as the UN General Secretary’s Panel of Experts on Accountability in Sri Lanka,741 international commissions of inquiry742 and UN Special Rapporteurs.743 On the other hand, Jean-​Marie Henckaerts and other icrc lawyers continued to present the Study in academic discussions,744 emphasising the Study’s success in legal practice.745 Considering the reliance

739

740 741 742 743

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Haynes, however concluding at 25 that ‘In any event, it is likely that the challenges contained in the Bellinger/​Haynes letter to the alleged two general errors in the icrc study will not be successful. This is because the two positions of the icrc study are so attractive as de lege ferenda that they will eventually be accepted as the lex lata’). In this regard, it is noteworthy that in the later discussions of the Guidance, the Study was referred to as support for the criticism of the Guidance, see e.g. M. N. Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5–​44 at 23 (fn. 62), 39 (fn. 110 and 111). Likewise, the Commentaries on the Tallinn Manual (Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare) and the hpcr Manual (Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the hpcr Manual), on which those who criticised the Study worked on, often rely on the Study without the reiteration of the criticism. See e.g. T. Treves, ‘Customary International Law’, mpepil, November 2006, para. 62; S. Watts, ‘Reviving Opinio Juris and Law of Armed Conflict Pluralism’, Just Security, 10 October 2013. See UN Secretary-​ General, Report of the Secretary-​ General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, paras. 183, 194, 196, 200–​1, 203–​4, 207, 211, 215–​ 8, 237, 239–​41, 246, 268. See e.g. UN Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc a/​h rc/​17/​44 (12 January 2012) paras. 64, 93–​4, 131, 146–​8, 172–​3, 176. See e.g. UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-​General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc a/​ hrc/​2/​7 (2 October 2006) paras. 22–​31. For a detailed overview of references to the Study and database in the practice of the UN, see Henckaerts and Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, pp. 168–​78. See e.g. J.-​M. Henckaerts, ‘The icrc Study on Customary International Humanitarian Law: Characteristics, Conclusions and Practical Relevance’ (2009) 6 Slovenian Law Review 225–​73; J.-​M. Henckaerts, ‘Customary International Humanitarian Law: Taking Stock of the icrc Study’ (2010) 78 Nordic Journal of International Law 435–​68; J.-​M. Henckaerts, ‘The International Committee of the Red Cross and the Clarification of Customary International Humanitarian Law’, in R. Geiss, A. Zimmermann and S. Haumer (eds.), Humanizing the laws of war (cup, 2017). Henckaerts, ‘Characteristics, Conclusions and Practical Relevance’, 251–​3.

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on the Study in legal practice and academia today, the criticism by legal scholars had little to no effect on the Study’s acceptance. The analysis of states’ reactions revealed that no detailed review of the Study followed to initial reactions, which merely presented general reservations about the Study.746 On the contrary, while the US government only iterated its general reservation, the governments of Israel and the UK even confirmed the customary status of Rules. In addition, the judiciary in most of those states, which articulated their reservations about the Study, adopted some of the Rules. Illustratively, the government of Denmark relied on numerous of the Study’s conclusions in the same document that contained a reservation to the Study.747 Lastly, in 2007, the icrc entered into a partnership with the British Red Cross to continuously update the Study in relation to state practice.748 This online, freely accessible database now contains practice of more than 190 states and about 80 percent more practice than the original print version.749 This database, which was honoured by the American Society of International Law’s International Legal Research Interest Group with the Jus Gentium Research Award in 2015,750 probably eradicates the initial criticism regarding the compilation of state practice, inter alia, expressed by the US government, and reaffirms the correctness of the Study’s findings.751 The database makes it even more difficult to refute the accuracy of the Study and thus makes a detailed response by the US government or any other critic of the Study less likely. In summary, it can be said that the criticism did little harm to the Study’s authority in terms of expertise, at least in the long run.

746 See also Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 234–​5. 747 See in this Chapter, at 3.3.3. 748 Lauterpacht Centre for International Law, ‘Joint Project of the British Red Cross (brcs) and the International Committee of the Red Cross (icrc) to update the icrc Study on Customary International Humanitarian Law’ accessed 31 August 2023. 749 Henckaerts and Debuf, ‘The icrc and the Clarification of Customary International Humanitarian Law’, p. 162. 750 icrc, ‘icrc customary international humanitarian law database wins prestigious award’ accessed 31 August 2023. 751 The Database was relied on in legal practice, see e.g. scsl, Prosecutor v Taylor (Judgment) Case No scsl-​03-​01-​T (18 May 2012) para. 411 (fn. 1013).

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3.4.2 Institutional Authority of the icrc The icrc expressed that it considers the Study primarily as a work of scholarship and that it respects the academic freedom of the authors and experts involved.752 The authors, Jean-​Marie Henckaerts and Luise Doswald-​Beck bear the responsibility for the findings.753 Nevertheless, the Study is closely connected to the icrc, especially due to the request by states at the 26th International Conference of the Red Cross and Red Crescent to the icrc to prepare a report on customary rules of ihl.754 It was also the icrc that presented the Study at the 30th International Conference of the Red Cross and Red Crescent.755 The Study itself, as well as the announcements of the Study’s publication, made a link between the Study to the request of states to the icrc, as well as to the icrc’s history in the development of ihl.756 Furthermore, many of the experts involved, including the authors, belonged to the icrc staff or were in close contact with the icrc. The printed version includes the icrc on its cover. The online version of the Study is run by the icrc.757 In fact, the Study has been related to the icrc in legal practice and academia.758 Consequently, as with the Pictet Commentaries and the ap Commentary, the Study benefits from the icrc’s authority.759 In this context, the Study also benefits from the success of the Pictet Commentaries and the ap Commentary. However, at the time of the release of the Study, the icrc was subject to criticism from Israel and the US. With regard to Israel, the icrc was accused of being biased against Israel, due to the icrc’s refusing to allow the Magen

752 Kellenberger, ‘Foreword 2005’, p. xvii. See also icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007, p. 2. 753 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. lv. 754 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–​27 January 1995, Recommendation ii, adopted as Annex ii to Resolution 1 at the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–​7 December 1995, reprinted in (1996) 310 irrc 84. 755 icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007. 756 Kellenberger, ‘Foreword 2005’, p. xv; Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, p. xxxii; Henckaerts, ‘A contribution to the understanding and respect for the rule of law in armed conflict’, 176–​7. 757 icrc, ‘Customary ihl Database’ accessed 31 August 2023. 758 See e.g. ECtHR, Case of Korbely v Hungary, App. No 9174/​02, Judgment, (19 September 2008) para. 51. 759 On the authority of the icrc see Chapter 1. Cf. also Bethlehem, ‘The methodological framework of the Study’, p. 14.

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David Adom to join the International Red Cross and Red Crescent Movement because it did not use an official emblem.760 In the US, the icrc was criticised by international lawyers for its public statements on the conduct of the US in the War on Terrorism. Kenneth Anderson, for instance, stated that the icrc increasingly suffers from a desire to abandon its longtime, genuinely ‘above the fray’ role and instead simply turn itself into another Euro-​n go. During the 1990s and up to today, I see a considerable amount of desire within the icrc to have its cake and eat it too –​a desire to benefit from the access and special privileges that go with being the neutral, special guardians of international humanitarian law, but at the same time, have the ngo activist coolness of nakedly advocacy, partisan, press-​hungry organizations such as Human Rights Watch or Amnesty International. There is a marked tendency within the icrc to want it both ways.761 The Republican party conducted a report for US Senators accusing the icrc of an anti-​American agenda. It stated, inter alia, that the icrc no longer adheres to the fundamental principles of neutrality, impartiality and independence, but that it has become an ‘aggressive advocate –​like Amnesty International –​for enforcing a broader set of obligations, whether nations have ratified relevant treaties or not’ and intends to reinterpret ihl to the detriment of the US.762 In some reviews of the Study, this criticism of the icrc was reflected onto the Study.763 Possibly the critical position towards the icrc in the US, together with the strategy of the US government in the War on Terror, was also the reason for the large number of critical reviews from US military lawyers.764 7 60 With further references, see Nicholls, ‘The Humanitarian Monarchy Legislates’, 230–​1. 761 K. Anderson, ‘Lee Casey and David Rivkin on the icrc’, Kenneth Anderson’s Law of War and Just War Theory Blog, 11 April 2005. See also L. Casey and D. Rivkin, ‘Double-​Red-​ Crossed’, The National Interest, 1 March 2005 (stating that the icrc ‘strains at the gnat of American unilateralism and swallows the camel of terrorist atrocities. Stop applauding!’). 762 MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1237–​8 citing a report by the Republican Policy Committee (United States Senate), ‘Are American Interests Being Disserved by the International Committee of the Red Cross?’ of 13 June 2005. See also J. Gerstein, ‘Red Cross Has “Lost Its Way,” Study Says’, The New York Sun, 14 June 2005. 763 See e.g. Nicholls, ‘The Humanitarian Monarchy Legislates’, 230–​1; Turns, ‘Weapons in the Study on Customary International Humanitarian Law’, 207 (fn. 48). 764 Cf. MacLaren and Schwendimann, ‘An Exercise in the Development of International Law’, 1236–​7 (with further references); Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 241 (fn. 12).

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However, even though the Study may have been viewed more critically after its publication due to the criticism of the icrc, it can be assumed that this criticism had no long-​term effect on the authority of the Study. In 2006, after an amendment of the Statutes of the Movement,765 the icrc recognised the Magen David Adom as a national society so it could join the Movement.766 Likewise, the critical voices in the US against the icrc have diminished. 3.4.3 Underlying Process The underlying process of the Study, which was particularly emphasised by Jean-​Marie Henckaerts in his responses to criticism of the Study, also plays a decisive role for the Study’s authority. The request by the 26th International Conference officially mandated the icrc in accordance with Article 5 (h) of the Statutes of the Movement to prepare a report on the status of customary ihl. The icrc and the Study’s authors emphasise that the Study is based on this mandate.767 This implies that the International Conference, including states, accept the Study.768 Although the icrc may finally have gone beyond the request because it did not only ‘circulate the report to States and competent international bodies’,769 but ultimately addressed the Study to a much broader audience,770 the icrc’s authority to publish the Study was not questioned.771 On the contrary, the Study has been explicitly linked to its mandate.772 765 29th International Conference of the Red Cross and Red Crescent, Resolution 1, Geneva, 21 June 2006, reprinted in F. Bugnion, ‘The 29th International Conference of the Red Cross and Red Crescent, Geneva, 20–​22 June 2006: challenges and outcome’ (2007) 89(865) irrc 163–​73 at 172–​3. 766 icrc, ‘International conference paves the way for red crystal’, 22 June 2006 accessed 31 August 2023. 767 Kellenberger, ‘Foreword 2005’, p. xvi; Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, p. xxxiii. 768 See also Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1865. 769 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–​27 January 1995, Recommendation ii, adopted as Annex ii to Resolution 1 at the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–​7 December 1995, reprinted in (1996) 310 irrc 84. 770 See also Nicholls, ‘The Humanitarian Monarchy Legislates’, 237 (noting that purpose of the project was to establish a tool which would enable effective implementation of ihl, but not to be merely academic). 771 Cf. Sivakumaran, ‘Beyond States and Non-​State Actors’, 377–​8. 772 See e.g. ECtHR, Case of Marguš v Croatia, Appl. No 4455/​ 10, Judgment (27 May 2014) para. 45.

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The organisation of the Study was rarely the subject of criticism,773 since it was carried out very carefully and complied with the demands of the 26th International Conference, namely: to prepare [the report] 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 organisations.774 A Steering Committee consisting of twelve renowned experts elaborated the plan of action and guided the further preparation of the Study.775 A group of thirty-​six academic and governmental experts from all the regions of the world attended the discussions on a preliminary assessment of customary ihl with the Steering Committee and later commented on two drafts of the Study.776 Forty-​seven national research teams provided sources of national practice, selected on the basis of geographical representativeness and recent experiences of armed conflicts, and six teams collected state practice from international sources.777 This said, according to Tullio Treves, the participation of external experts together with the support of the icrc may induce the perception of the Study as ‘something in between private scholarly codification and codification by States.’778 3.4.4 Form With regard to its form, in general, the Study gives non-​specialists access to (the discourse on) customary ihl. Before the release of the Study, customary ihl rules were known to only specialists, who discussed their formation, method of identification and formulation among themselves.779 The icrc has ensured that the Study is disseminated as widely as possible. It organised 773 See Meron, ‘Revival of Customary Humanitarian Law’, 834; Dinstein, ‘The icrc Customary International Humanitarian Law Study’, 100. 774 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–​27 January 1995, Recommendation ii, adopted as Annex ii to Resolution 1 at the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–​7 December 1995, reprinted in (1996) 310 irrc p. 84. 775 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. li. 776 Ibid, pp. liv, lvi–​lvii. 777 Ibid, pp. li–​l iii. 778 Treves, ‘Customary International Law’, para. 62. 779 Cf. Scobbie, ‘The approach to customary international law in the Study’, p. 21.

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launch events and presentations of the Study around the world in collaboration with other institutions780 and initiated or participated in publications on the Study.781 Volume i has been translated in Arabic, Chinese, Farsi, French, Serb and Spanish and a summary of the Study has been translated into more than 30 languages.782 Moreover, since 2010, the Study and regular practice updates have been made freely accessible online.783 For many, the Study has thus become the starting point and the main source of reference for customary ihl. The title of the Study’s first volume, ‘Customary International Humanitarian Law –​ Vol i: Rules’, as well as the form of the 161 identified Rules in black letters imply that the Rules are definite.784 The wording of the Rules is very clear and coherent and the Rules are distinguished from the commentary.785 In this way, the Study resembles an official codified text containing binding rules.786 In fact, the Rules have often been referred to as comparable to treaty rules in academia and legal practice.787 The criticism of the formulation of the Rules probably has no long-​term effect on the authority of the Study. Although, in legal practice, much reference has been made to the commentary on the Rules in Volume i or to the practice in Volume ii, there have also been many cases in which reference is (only) made to the Rules.788

780 icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007, Annex ii. 781 In addition to the publications by Jean-​Marie Henckaerts and other icrc lawyers cited above, see also E. Wilmshurst and S. C. Breau (eds.), Perspectives on the icrc study on customary international humanitarian law (cup, 2007); L. Maybee and B. Chakka, Custom as a Source of International Humanitarian Law: Proceedings of the Conference to Mark the Publication of the icrc Study ‘Customary International Humanitarian Law’ held in New Delhi, 8–​9 December 2005 (International Committee of the Red Cross and Asian African Legal Consultative Organization, 2006). 782 icrc, Study on Customary International Humanitarian Law, 30ic/​07/​8.3, Geneva, 26–​30 November 2007, p. 3. 783 icrc, ‘Customary ihl Database’ accessed 31 August 2023. 784 Bethlehem, ‘The methodological framework of the Study’, p. 4. 785 Sivakumaran, ‘Beyond States and Non-​State Actors’, 371; Petrov, Expert Laws of Wars, p. 67. 786 Scobbie, ‘The approach to customary international law in the Study’, p. 17. 787 See in this Chapter, at 3.2, 3.3.3 and 3.4.1. On the effect of similarity with legally binding materials, cf. Caron, ‘The ilc Articles on State Responsibility’, 866. 788 See in this Chapter, at 3.2 and 3.3.3.

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3.4.5 Methodology Although the Study introduces the underlying methodology in 15 pages of its introduction and bases it on generally accepted (traditional) standards for the identification of customary international law set in the jurisprudence of the International Court of Justice,789 strong criticism was levelled at the Study’s methodological approach. The US, the UK, Israel, Germany and Denmark, next to several academics, even cited the underlying methodology as the main reason for their general reservations about the Study.790 The main point of the critique was, above all, that the methodology applied departs from the traditional approach. However, in addition to the above discussion on the effect of criticism with regard to the Study’s expertise,791 this criticism regarding the methodology must be seen against the background that a debate on customary international law was in full progress at the time the Study was prepared and published. Various approaches to identifying customary international law were discussed in academia.792 In the case law of the International Court of Justice, different approaches to customary international law were observed.793 The Study was primarily based on the approach of the International Law Association in 2000, which at that time, was the first comprehensive enquiry on the identification of customary international law. Only in 2011, the International Law Commission decided to include this topic to its work programme to address the controversies regarding the identification of customary international law and to ensure a common understanding.794 The International Law Commission is an expert body in the frame of the United Nations and said to represent states’ interests,795 and thus is able to achieve 789 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xxxvii–​l i. 790 See in this Chapter, at 3.3. 791 See in this Chapter, at 3.4.1. 792 See e.g. J. Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’ (2004) 15(3) ejil 523–​53; R. Kolb, ‘Selected problems in the theory of customary international law’ (2003) 50(2) Netherlands International Law Review 119–​50. 793 See e.g. the analysis of the International Court of Justice case law by S. Talmon, ‘Determining Customary International Law: The icj’s Methodology between Induction, Deduction and Assertion’ (2015) 26(2) ejil 417–​43. 794 unga, Report of the International Law Commission –​Sixty-​third session (26 April –​3 June and 4 July –​12 August 2011) UN Doc a/​66/​10 (12 August 2011), paras. 365–​7. In 2012, the UN General Assembly took note of the inclusion of the topic in the International Law Commission’s programme of work, see unga, Report of the International Law Commission on the work of its sixty-​third session, UN Doc a/​r es/​66/​98 (13 January 2012) para. 7. 795 See e.g. T. Schultz, ‘Life Cycles of International Law as a Noetic Unity: The Various Times of Law-​Thinking’ (2016) tli Think! Papers No 55 at 19.

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acceptance by states for a uniform approach. The conclusions on the identification of customary international law, however, correspond in many ways to the Study’s methodological approach.796 The International Law Commission’s Secretariat in a memorandum797 and a report by the Special Rapporteur of the Working Group on identification of customary international law798 recommended the Study and the icrc Customary International Humanitarian Law Database as literature on the customary law of armed conflict. Moreover, the Special Rapporteur emphasised the relevance of the Study for the Working Group and stated that it corresponds to the findings of the International Law Commission.799 In addition, in academia,800 as well as in legal practice,801 reference has been made to the Study’s methodology for the identification of customary international law. This indicates that even if the criticism of the methodological approach affected the Study’s authority in the beginning and is still put forward as a reason by a few states for their reservations about the Study, it is unlikely that this criticism affects the Study’s authority in the long run. This is further evident from the observation that the Study’s Rules are applied in legal practice and academia despite criticism of the methodology and the methodology’s partly incorrect application. Conclusion: Filling the Loopholes in International Humanitarian Law The investigation of the Study’s authority has shown that it enjoys a high authority, which is mainly based on expertise, the reputation of the icrc, as well as the Study’s underlying process and form. The methodology also plays a role for the Study’s authority, but at least initially did not contribute to it. Instead, it was highlighted as a justification to express reservations about the Study.

3.5

796 For a detailed comparison between the final outcome of the work of the International Law Commission and the Study’s methodology, see Chapter 3, at 1.2.1. 797 ilc, Identification of customary international law: Ways and means for making the evidence of customary international law more readily available, Memorandum by the Secretariat, UN Doc a/​c n.4/​710/​Rev.1 (14 February 2019), pp. 33–​4, 150. 798 ilc, Fourth report on identification of customary international law by Michael Wood, Special Rapporteur, Addendum UN Doc a/​c n.4/​695/​Add.1 (25 May 2016), p. 23. 799 M. Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’ (2018) 51(3) Vanderbilt Journal of Transnational Law 727–​36 at 729, 731 and 735. 800 See Chapter 3, at 1.1. 801 See Chapter 3, at 1.2.

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However, the criticism of the methodology, and the Study in general, by states’ governments and in academia does not seem to have a long-​term effect on the Study’s authority. Especially, the criticism of the Study’s methodology seems irrelevant after the International Law Commission published conclusions on the identification of customary international law that broadly correspond to the Study’s methodology.802 A tradition of referring to the Study equivalent to the Pictet Commentaries may develop since the Study probably remains the only source that systematically provides rules of customary ihl and collects state practice to such an extent.803 What conclusions can be drawn from the Study’s authority for ihl? The Study’s introduction emphasises the foundations of the classical type of international law. It mainly bases the identification of the Rules on state practice and opinio juris. In fact, the Study provides for a comprehensive collection of state practice that can rarely be found in legal practice or academia for the majority of the Rules. Some Rules that have already been identified in case law of the international criminal tribunals as customary international law based on insufficient state practice or non-​legal considerations are confirmed by the Study and linked to the will of states. Moreover, the Study counters the efforts by some states, especially the US, to softening and hierarchising ihl by establishing the customary character of treaty rules that are not universally ratified, by considering verbal and negative practice and by rejecting the doctrine of specifically affected states for the field of ihl. While the US government rejects the Study, it finds broad acceptance by many other states. Then again, the Study’s authority challenges the distinction between law and non-​law as well as state consent as the basis for ihl. The Study’s Rules are referred to as comparable to treaty rules and find almost universal application. While the underlying methodology generally attaches great weight to state practice, some of the identified Rules lack evidence of state practice. Nevertheless, these Rules find broad acceptance in legal practice and academia as international law. Consequently, the Study not only confirms, but also creates customary ihl. Thus, the Study successfully fills the loopholes in ihl that states could not agree upon in treaty rules. In addition, the underlying methodology influences the structural rules of international law, which is the subject of Chapter 3.

8 02 See Chapter 3, at 1.2.1. 803 Cf. Bethlehem, ‘The methodological framework of the Study’, p. 14; Milanovic and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1857–​8.

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Interpretive Guidance on the Notion of Direct Participation in Hostilities

The icrc published the Guidance on the Notion of Direct Participation in Hostilities in 2009. The aim of the Guidance was to provide an interpretation of the notion of direct participation in hostilities, which is found, but not defined, in provisions of treaty and customary ihl.804 The Guidance was published by the icrc to respond to the increased involvement of civilians in armed conflicts, which caused uncertainty as to the distinction between legitimate military targets and persons protected against direct attacks.805 The Guidance provides ten recommendations and a commentary as to how ihl relating to the notion of direct participation in hostilities should be interpreted in the context of contemporary armed conflict, both international and non-​international. These ten recommendations, in sum, address three questions, namely: Who is considered a civilian for the purposes of the principle of distinction? What conduct amounts to direct participation in hostilities? What modalities govern the loss of protection against direct attack?806 It is necessary to introduce some of the Guidance’s interpretations to facilitate a better understanding of the Guidance’s reception in academia and legal practice. With regard to the first question of who is considered a civilian, the Guidance introduces the concept of ‘continuous combat function’ to define membership in non-​state organised armed groups. Members of non-​state organised armed groups are excluded from the concept of civilian, thus representing a third group, next to civilians and combatants. This concept only applies for non-​international armed conflicts.807 Regarding the question of what conduct amounts to direct participation in hostilities, the Guidance proposes three criteria that a specific act must cumulatively meet in order to qualify as direct participation in hostilities. These are: (1) a threshold of harm, (2) a requirement of direct causation, and (3) a belligerent nexus.808 804 See e.g. Common Article 3 (1), Article 51 (3) ap i, Article 13 (3) ap ii or Rule 6 in Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. 19. 805 J. Kellenberger, ‘Foreword’, in N. Melzer (ed.), Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (icrc, 2009), pp. 5–​ 6; N. Melzer, ‘The icrc’s Clarification Process On the Notion Of Direct Participation In Hostilities Under International Humanitarian Law’ (2009) 103 Proceedings of the asil Annual Meeting 299–​307 at 299. 806 Melzer, Interpretive Guidance, p. 13. 807 Ibid, p. 16, Recommendation ii. 808 Ibid, p. 16, Recommendation v.

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The Guidance establishes conditions that govern the loss of protection for civilians in international and non-​international armed conflicts, respectively. On the question of what modalities govern the loss of protection, the Guidance (among other sources) recommends that civilians lose and regain protection against direct attack in accordance with the intervals of their engagement in direct participation in hostilities (‘revolving door of protection’). In non-​ international armed conflicts, in contrast, members of non-​state organised armed groups lose protection against direct attack until they cease to assume the continuous combat function.809 Moreover, the Guidance introduces a standard for a graduated use of force in direct attack,810 for which it, inter alia, presents an interpretation of the restrictive character of the principle of military necessity.811 The publication of the Guidance was preceded by an expert process jointly conducted by the icrc and the tmc Asser Institute consisting of five informal expert meetings from 2003 to 2008, each bringing together 40 to 50 legal experts from academia, the military, governmental, and non-​governmental organisations, who participated in their private capacity.812 However, a unanimous consent was not achieved due to substantive dissent among the experts on ‘the most important legal questions’.813 It was agreed to keep the participating experts’ names confidential and the icrc decided to publish its institutional position, pointing out that ‘the positions enunciated are the icrc’s alone.’814 Nevertheless, the Guidance draws on the expert process.815 In addition, the Guidance is mostly based on treaty and customary ihl, the travaux préparatoires of the Geneva Conventions, the Additional Protocols, jurisprudence of international courts and tribunals, military manuals, the Pictet Commentaries and the ap Commentary, and works of legal scholars. Despite the lack of consent in the expert process, the Guidance emphasises that it

8 09 Ibid, p. 17, Recommendation vii. 810 This abbreviation was introduced by K. L. Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities: sociological and democratic legitimacy in domestic legal orders’ (2017) 8(2) Transnational Legal Theory 224–​46 at 225. 811 Melzer, Interpretive Guidance, p. 17, Recommendation ix. 812 Ibid, p. 9. 813 icrc, ‘Overview of the icrc’s Expert Process (2003–​2008)’, 2009 accessed 31 August 2023, p. 3. See also N. Melzer, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities (Geneva, 5/​6 February 2008): Summary Report (icrc, 2008), p. 73. 814 Kellenberger, ‘Foreword 2009’, p. 6. 815 In total, the Guidance includes 169 references to the reports of the expert process in its footnotes.

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‘provides an interpretation of the notion of direct participation in hostilities within existing legal parameters.’816 But were the Guidance’s interpretations considered in legal practice and academia to be ‘within existing legal parameters’? To clarify the Guidance’s authority for the determination of rules of ihl, the next three sections examine the large discussion of the Guidance in academia, which evolved shortly after the Guidance’s publication and the reliance on the Guidance by international courts and tribunals and in state practice. 4.1 Broad Criticism in Academia The publication of the Guidance was followed by several reactions from academia. The nyu Journal of International Law and Politics, for instance, dedicated an entire issue to a discussion of the Guidance, in which different components were critically analysed by senior-​level legal advisors to the militaries of Canada, the UK, and the US. This was followed by a response from the author of the Guidance, Nils Melzer.817 In general, the Guidance was rather critically discussed. It was entirely rejected only by one commentator.818 As the issue of the nyu Journal of International Law and Politics exemplifies, the critiques of the Guidance mostly came from those legal scholars who are seen as representatives of the interests of the military.819 Yet, criticism was also expressed from a human rights perspective.820 However, despite this criticism, the Guidance also found support from various fields in academia.821 This section presents the main criticism of the Guidance, which focused on the personal dimension of the continuous combat function concept, the 8 16 Kellenberger, ‘Foreword 2009’, p. 6. 817 For an introduction to the discussion, see R. Goodman and D. Jinks, ‘The icrc Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law: An Introduction to the Forum’ (2010) 42(3) jilp 637–​40. 818 Parks, ‘No Mandate, No Expertise, and Legally Incorrect’. 819 Cryer, ‘See a Little Light’, p. 133. 820 See e.g. F. J. Hampson, ‘Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights’ (2011) 87 ils 187–​213. 821 See e.g. D. Fleck, ‘Direct Participation in Hostilities by Nonstate Actors and the Challenge of Compliance with International Humanitarian Law’, (2010) 4 Public Diplomacy Magazine 40–​51; D. Akande, ‘Clearing the Fog of War? The icrc’s Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59(1) iclq 180–​92; S. Bosch, ‘A legal analysis of how the International Committee of the Red Cross’s interpretation of the revolving door phenomenon applies in the case of Africa’s child soldiers’ (2015) 24(1) African Security Review 3–​22; A. Alam, ‘icrc’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law: An Overview’ (2009) 9 isil Year Book of International Humanitarian and Refugee Law 47–​77; Cryer, ‘See a Little Light’.

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constitutive elements of direct participation in hostilities, the time dimension of direct participation in hostilities, the graduated use of force standard, as well as on the Guidance’s underlying expert process and form. After an interim conclusion, the response from Nils Melzer is briefly summarised. 4.1.1 Criticism of the Continuous Combat Function Concept The decision of the icrc to introduce the continuous combat function concept to determine membership in organised armed groups in non-​international armed conflicts, instead of relying on formal criteria in parallel to the determination of membership in state armed forces, was heavily criticised for leading to an unequal treatment between organised armed groups and the state military.822 Commentators highlighted that, as a consequence of the determination of membership according to the continuous combat function concept, supporting personnel of organised armed groups would not be valid targets but be considered as civilians, while members of state armed forces with the same functions would be targetable.823 This granting of immunity to those members of organised armed groups without continuous combat function could prolong conflicts and increase the danger for uninvolved civilians due to an erosion of the validity of civilian status in the long run,824 as well as distort the military necessity-​humanitarian balance of ihl.825 The Guidance was alleged to ignore the reality that organised armed groups often have a membership structure based on formal, in addition to functional, criteria.826 It was pointed out that academic writings (including the icrc’s own commentary on Additional Protocol i) and case law consider a much broader range of activities as an integral part of organised armed groups, including the performance of logistic functions.827 Overall, the continuous combat function concept was criticised as complex and unclear.828 In this context, reference was made to the different approach 822 S. Pomper, ‘Remarks by Stephen Pomper’ (2009) 103 Proceedings of the asil Annual Meeting 307–​10 at 309. 823 K. Watkin, ‘Opportunity Lost: Organized Armed Groups and the icrc “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42(3) jilp 641–​95 at 649 (who at 672 questioned also the Guidance’s viewpoint that all members of state armed forces are targetable because such membership is regulated by domestic law); Schmitt, ‘The Status of Opposition Fighters’, 132–​3; Schmitt, ‘A Critical Analysis’, 23. 824 Watkin, ‘Opportunity Lost’, 666–​7, 675. See also Alam, ‘An Overview’, 76. 825 Schmitt, ‘A Critical Analysis’, 23; Watkin, ‘Opportunity Lost’, 675. 826 Schmitt, ‘The Status of Opposition Fighters’, 132–​3. 827 Watkin, ‘Opportunity Lost’, 683–​4. 828 Ibid, 655–​7; Pomper, ‘Remarks by Stephen Pomper’, 308–​9; L. Zhu, ‘论国际人道法中的 平民概念 –​ 兼评红十字国际委员会《解释性指南》 [The Concept of Civilians in

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of the Guidance for international armed conflicts, where the same members of an organised armed group, if not belonging to a party to the conflict, would be considered as civilians regardless of any continuous combat function.829 The continuous combat function concept was alleged to have no basis in treaty or customary ihl, which culminated in doubts that the Guidance provides an interpretation of the notion of direct participation in hostilities de lege lata.830 From a human rights perspective, the introduction of the continuous combat function concept was criticised for complicating the process of making ihl and international human rights law interoperable, since the continuous combat function concept allows for the targeting of individuals due to their status instead of their behaviour, as applied under international human rights law. This was particularly criticised for low-​intensity non-​international armed conflicts, where the broader protection regime of Additional Protocol ii does not apply.831 Moreover, difficulties with the continuous combat function concept were highlighted when applied to the targeting of child soldiers since they are often unlawfully recruited and coerced to become members of organised armed groups and their disassociation from those groups may not always be feasible.832 On the other hand, the continuous combat function concept was positively evaluated by commentators from various fields of international law.833 It was emphasised that the concept takes into account the reality of structures and informal membership of organised armed groups.834 Dapo Akande rejected the critique that the concept is too narrow and referred to the fact that persons not having a continuous combat function may still be targeted on account of direct participation in hostilities, or be detained on the basis of domestic or international law.835

829 8 30 831 832 833 834 835

ihl: With Comments on the icrc’s Interpretive Guidance]’ (2018) 35(6) Jinan Journal (Philosophy and Social Sciences) 103–​112 at 163, 109. Watkin, ‘Opportunity Lost’, 650–​1; Schmitt, ‘A Critical Analysis’, 18–​9. But see Cryer, ‘See a Little Light’, p. 121 (noting that ‘it is very important, and telling that the guidance has taken the view that in iac there is no “third status” between combatant and civilian’). Watkin, ‘Opportunity Lost’, 643–​4. Hampson, ‘Direct Participation in Hostilities’, 197–​202. Bosch, ‘A legal analysis’, 12. See e.g. ibid, 13; Fleck, ‘Direct Participation in Hostilities by Nonstate Actors’, 44. J. A. Williamson, ‘Challenges of Twenty-​ First Century Conflicts: A Look at Direct Participation in Hostilities’ (2010) 20(3) Duke Journal of Comparative & International Law 457–​71 at 464. Akande, ‘Clearing the Fog of War?’, 186–​7.

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4.1.2

Criticism of the Constitutive Elements of Direct Participation in Hostilities Some commentators generally noted that the Guidance’s approach went beyond what may be commonly understood from the words ‘direct participation in hostilities’,836 and questioned the usefulness of the constitutive criteria for direct participation in hostilities in active hostilities.837 With regard to the constitutive elements of direct participation in hostilities only the threshold of harm criterion and the direct causation criterion were substantially criticised. The belligerent nexus criterion was hardly met with any criticism.838 Regarding the threshold of harm criterion, it was critiqued that the choice of the term ‘threshold’ was inappropriate, since the focus should lie with the nature of the harm and not on the quantity.839 It was pointed out that the limitation of harm to negative consequences for the enemy is too narrow and that benefits to the own party should have been included.840 The fact that the threshold of harm criterion artificially divides group activities and does not take into account preparatory actions, which would remain ‘under an umbrella of immunity based on civilian status’, was also criticised.841 The criticism of the limitation to harm was also related to the direct causation criterion since the limitation to harm would permeate the notion of directness.842 The direct causation criterion was criticised as being too narrow, due to the fact that a requirement of ‘one single casual step’ does not include acts for the maintenance of the capacity to harm the enemy.843 Conversely, the Guidance’s approach in defining direct participation in hostilities was seen as being in accordance with the ihl provisions dealing with

836 D. van der Toorn, ‘“Direct Participation in Hostilities”: A Legal and Practical Road Test of the International Committee of the Red Cross’s Guidance through Afghanistan’ (2010) 17(7) Australian International Law Journal 7–​28 at 18, 22–​5. 837 Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 734–​ 5; E. Crawford, ‘Regulating the Irregular: International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts’ (2011) 11(46) Sydney Law School Research Paper at 19; L. Zhu, ‘论国际人道法中的直接参加敌对行动 –​ 以红十字国际委员会《解释 性指南》为视角 [Direct Participation in Hostilities in ihl: Under the Perspective of icrc’s Interpretive Guidance]’ (2014) 32(11) Hebei Law Science 98–​105 at 105. 838 See e.g. the analysis of the three cumulative criteria for direct participation in hostilities by Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 735–​6. 839 Ibid, 716. 840 Ibid, 719–​20. 841 Watkin, ‘Opportunity Lost’, 680–​2. 842 Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 725. 843 Ibid, 725–​8.

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direct participation in hostilities.844 Dieter Fleck rejected the criticism of the Guidance’s approach to define direct participation in hostilities on the basis that the criticism ‘fails to offer a convincing assessment.’845 Overall, the criticism of the approach was not entirely negative. For example, Michael Schmitt admitted that the constitutive elements for direct participation in hostilities ‘represent a useful step forward in understanding the notion’.846 4.1.3

Criticism on the Time Dimension of Direct Participation in Hostilities Regarding the time dimension of direct participation in hostilities, the revolving door of protection was particularly subject to criticism.847 It was emphasised that the revolving door approach has no basis in customary law.848 On the contrary, this approach was rejected by the US government, the Israeli Supreme Court and academia, as well as the icrc’s own commentary to Additional Protocol i.849 The incompatibility of this approach with the realities of contemporary armed conflict was highlighted.850 Damien van der Toorn stressed that disrespect for ihl by state armed forces, to the detriment of civilians, would be the result of the Guidance’s not extending the revolving door of protection to state armed forces, which would render state armed forces continuously targetable in comparison to their enemies.851 Apart from the revolving door of protection, Bill Boothby held that the Guidance interprets the concepts of preparation, deployment and return too restrictively and that by establishing a continuous loss of protection only with regard to members of organised armed groups having a continuous combat function; the Guidance unjustifiably privileges regularly-​participating civilians.852 Kenneth Watkin criticised that the classification of direct participation

844 Akande, ‘Clearing the Fog of War?’, 188; Fleck, ‘Direct Participation in Hostilities by Nonstate Actors’, 45–​6. 845 Fleck, ‘Direct Participation in Hostilities by Nonstate Actors’, 50. 846 Schmitt, ‘A Critical Analysis’, 43; Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 738. 847 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 148; Zhu, ‘The Concept of Civilians in ihl’, 110. 848 B. Boothby, ‘“And For Such Time As”: The Time Dimension to Direct Participation in Hostilities’ (2010) 42 jilp 741–​68 at 762–​4. 849 Ibid, 756–​8; Watkin, ‘Opportunity Lost’, 691, 687; Schmitt, ‘The Status of Opposition Fighters’, 136–​7. 850 Watkin, ‘Opportunity Lost’, 689. 851 van der Toorn, ‘Direct Participation in Hostilities’, 26. 852 Boothby, ‘And For Such Time As’, 752–​3.

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in hostilities on a persistent recurring basis between sporadic participation and continuous combat function remains unclear.853 4.1.4 Criticism on the Graduated Use of Force Standard The graduated use of force standard developed in Part ix of the Guidance was particularly criticised. Overall, it was seen as an inaccurate interpretation of law and an attempt of the icrc to introduce a law enforcement paradigm in ihl.854 Exemplarily, Jan Kleffner alleged the graduated use of force standard to change the rule on loss of protection from: ‘civilians who take a direct part in hostilities lose their protection from direct attack for such time’ to ‘civilians who take a direct part in hostilities lose their protection from direct attack for such time, provided that such a direct attack is militarily necessary.’855 The fundaments on which the graduated use of force standard was elaborated upon were all rejected. In particular, the Guidance’s interpretation of the principle of military necessity as a restraint for the use of force was met with objection.856 It was emphasised that this interpretation had no basis in state practice857 and contradicted the balance between the principles of military necessity and humanity already underlying each rule of ihl.858 A lack of state practice was also observed for the Guidance’s interpretation on the prohibition of employing methods and means of a nature to cause superfluous injury and unnecessary suffering as a foundation for the graduated use of force standard.859 Lastly, it was stated that basing the graduated use of force standard on international human rights law disregarded established case law recognising 8 53 Watkin, ‘Opportunity Lost’, 688. See also Cryer, ‘See a Little Light’, p. 125. 854 Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 805; Pomper, ‘Remarks by Stephen Pomper’, 308; W. Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’ (2009) 12 yihl 287–​300 at 298–​9. 855 J. K. Kleffner, ‘Section ix of the icrc Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?’ (2012) 45(1) Israel Law Review 35–​2 at 40–​3. 856 See e.g. W. H. Boothby, ‘Direct Participation in Hostilities: A Discussion of the icrc Interpretive Guidance’ (2010) 1(1) International Humanitarian Legal Studies 143–​64 at 163–​4. 857 See e.g. Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 803–​4. 858 Kleffner, ‘Section ix of the icrc Interpretive Guidance on Direct Participation in Hostilities’, 40–​3; Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 792–​3. 859 See e.g. Kleffner, ‘Section ix of the icrc Interpretive Guidance on Direct Participation in Hostilities’, 43–​5.

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ihl as lex specialis in armed conflict.860 Jan Kleffner highlighted that only states would be bound by the graduated use of force standard since states, and not non-​state organised armed groups, are bound under international human rights law.861 Apart from the rejection of the fundaments of the graduated use of force standard, it was pointed out that Part ix is inconsistent with the Guidance’s implicit recognition that in the context of non-​international armed conflicts, the continuous combat function concept leads to a belligerent status and that Part ix attempts to ‘re-​civilianise’ non-​state belligerents.862 4.1.5 Criticism of the Guidance’s Underlying Expert Process and Form In addition to the Guidance’s interpretations, the underlying expert process and the form of the Guidance were subject to criticism. The experts who had left the process especially emphasised that the Guidance does not reflect a consensus among the participating experts.863 Hays Parks, for instance, criticised the icrc for not taking into account the advice of the participating military experts to correct Part ix. Rather, the icrc forwarded the final text including Part ix to the participating experts shortly before the Guidance’s publication, without prior consultation.864 According to Parks, this constituted a violation of the experts’ trust in the icrc and finally led to the withdrawal of one-​third of the experts from the process.865 The Guidance’s form was criticised in so far as the Guidance introduces too many new confusing terms and concepts. Consequently, it was deemed to be an unhelpful guide for the clarification of the notion of direct participation in hostilities.866 The accompanying commentary,867 and, in

8 60 Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 812–​27. 861 Kleffner, ‘Section ix of the icrc Interpretive Guidance on Direct Participation in Hostilities’, 45–​52. 862 G. Corn and C. Jenks, ‘Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-​International Armed Conflicts’ (2011) 33(2) University of Pennsylvania Journal of International Law 313–​62 at 348–​51. 863 See e.g. Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 698. 864 Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 783–​5, 795. See also Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 299–​300 (who did not withdraw from the process, but suspected the icrc officials involved in the process to pursue interpretations that were accurate and comprehensive to them instead of interpretations that could reach a consensus among the experts). 865 Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 783–​5, 795. 866 Watkin, ‘Opportunity Lost’, 683. 867 Boothby,’ And For Such Time As’, 753.

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particular, the examples mentioned in the commentary, were criticised as ambiguous.868 On the other hand, Dieter Fleck commended the underlying process, for the icrc’s cooperation with the experts and the writing of comprehensive reports on the meetings.869 In addition, commentators positively reviewed the form of the Guidance as a very solid and professional legal work,870 and as clearly written and presented.871 4.1.6 Not Much Lex Lata, but Promising Lex Ferenda? The analysis of reactions from academia reveals that the Guidance was largely criticised. Much of the criticism was essentially directed toward the reasoning of the interpretations. Here, in particular, the weighting and omission of legal materials was discussed. This often led the critics to conclude that the interpretations do not reflect the law as it is. Indeed, it can be doubted whether the Guidance ‘provides an interpretation of the notion of direct participation in hostilities within existing legal parameters.’ In 2005, only four years before the Guidance’s publication, the Study concluded that ‘a clear and uniform definition of direct participation in hostilities has not been developed in State practice.’872 The controversies during the expert process and the harsh criticism of the Guidance by legal scholars imply that this conclusion remained in 2009. However, the criticism regarding the Guidance’s correctness varies in nature and degree. For instance, while the graduated use of force standard seems to be strongly rejected as not reflecting the state of law, the constitutive elements for direct participation in hostilities were only met with cautious criticism. Other interpretations, such as the time dimension of the continuous combat function concept or the concept of civilians in international armed conflicts, were hardly criticised. Several critics even emphasised positive aspects of the Guidance. Michael Schmitt, for instance, added to his criticism that ‘[i]‌n fairness, there is much to recommend the document.’873 Bill Boothby noted that ‘the publication of the Interpretive Guidance has been a most important 868 Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 732 (who, on the other hand, noted with regard to examples of direct participation in hostilities cited in the Guidance, that these had been ‘proved uncontroversial in the experts’ discussions and illustrate the broad coverage of the concept’, see at 716.); Boothby, ‘And For Such Time As’, 747–​8. 869 Fleck, ‘Direct Participation in Hostilities by Nonstate Actors’, 47, 49. 870 Ibid. 871 van der Toorn, ‘Direct Participation in Hostilities’, 17; Alam, ‘An Overview’, 75. 872 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. 23. 873 Schmitt, ‘A Critical Analysis’, 6.

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event’.874 Steven Pomper stated that the Guidance is ‘helpful where it reinforces broad concepts that are already present in the architecture of the laws of war but not specially well developed.’875 Furthermore, the analysis of reactions from academia demonstrated that the Guidance was also positively reviewed by experts from various fields of international law, who even defended Part ix of the Guidance, including the controversial graduated use of force standard.876 However, even its proponents did not assess the Guidance as the last word in the matter, but only as a start of a future process that could develop a coalition of consensus on the meaning of direct participation in hostilities.877 Overall, the lex lata status was thus rejected for the Guidance. However, large parts of the Guidance were assumed to be promising for the development of new legal standards. The large number of reactions to the Guidance indicates that the icrc’s interpretations on direct participation of hostilities are taken seriously by legal scholars as well as legal advisors to the militaries. 4.1.7 Response by Author of the Guidance, Nils Melzer Nils Melzer reacted to the criticism on the Guidance made by Kenneth Watkin, Michael Schmitt, Bill Boothby and Hays Parks in the nyu Journal of International Law and Politics.878 The extent of his response, which was almost as long as the Guidance itself, indicates how sensitively the criticism was perceived by the icrc. In the beginning, Melzer underlined that the Guidance reflects the icrc’s own position and aims to ensure a clear and coherent interpretation of ihl.879 At the same time, he stressed the importance of the expert process that brought together two different approaches on the issue of direct participation in hostilities –​those in favour of a more permissive targeted regime and those in favour of a more protective interpretation of the law –​and that the Guidance represents a consensus of the diverse expert opinions expressed during this process.880 Above all, the response clarified misunderstandings, refuted the criticism on the Guidance, and itself criticised the alternative approaches proposed by the four experts in their reactions to the Guidance. Regarding what Melzer framed

8 74 875 876 877 878 879 880

Boothby, ‘And For Such Time As’, 768. Pomper, ‘Remarks by Stephen Pomper’, 308. See e.g. Cryer, ‘See a Little Light’, pp. 128–​30. See e.g. ibid, pp. 116–​7; Fleck, ‘Direct Participation in Hostilities by Nonstate Actors’, 48–​9. Melzer, ‘Keeping the Balance Between Military Necessity and Humanity’. Ibid, 835–​6. Ibid, 834–​6, see also at 896.

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as misunderstandings, he pointed out that certain points in the Guidance had been overlooked,881 or that the Guidance was incorrectly cited,882 and explained when sources had been wrongly understood as the legal basis for the Guidance’s interpretations.883 He also highlighted and disproved when something was incorrectly implied that was not intended by the author, for example that Part ix imposes a law enforcement paradigm in ihl,884 or that the continuous combat function concept implies a de jure entitlement to combatant privilege.885 With respect to Parks’ critique on Part ix, Melzer clarified that Parks mostly did not address the final text of the Guidance, but referred to preliminary formulations in background papers and earlier drafts of the Guidance.886 When refuting the criticism on the different components of the Guidance, Melzer argued that the criticism regarding the Guidance is incoherent887 and lacks a legal basis or that legal material was incompletely or incorrectly cited.888 For instance, he stated that Boothby’s doubt as to the customary nature of the phrase ‘unless and for such time’ in Article 51 (3) ap i remains legally unsubstantiated, since Boothby based his claim only on the practice of two non-​contracting states and non-​authoritative sources.889 Inversely, Melzer sought to demonstrate that the Guidance’s interpretations were in conformity with treaty and customary ihl,890 the purpose and principles of ihl,891 the icrc’s own commentaries,892 as well as the reality observed in operational practice.893 He highlighted the role of the icrc, including its long institutional experience in armed conflicts and the mandate from the Statutes of the Movement, in order to underline the extent of the icrc’s knowledge on the use of force in contemporary armed conflicts.894 Melzer also sought to refute criticism related to the expert process, for instance, with regard to Parks’ claim concerning the late introduction of Part 8 81 882 883 884 885 886 887 888 889 890 891 892 893 894

See e.g. ibid, 862, 866–​8, 869, 880–​2. Ibid, 881. See e.g. ibid, 897. Ibid, 899–​904. Ibid, 847. Ibid, 896–​7. See e.g. ibid, 859, 870. See e.g. ibid, 871–​2, 909–​13. Ibid, 884–​6. See e.g. ibid, 843–​6, 851–​2. See e.g. ibid, 896. See e.g. ibid, 843–​6. See e.g. ibid, 851–​2. Ibid, 893–​4, 914–​5.

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ix into the expert process.895 He emphasised that the Guidance included certain interpretations such as the ‘without prejudice clause’ upon the explicit request of the majority of the participating experts.896 In his critique of the alternative approaches proposed by the experts, Melzer expressed equal concerns that were articulated by the experts in their criticism on the Guidance. Above all, he criticised the approaches for lacking a legal basis897 and demonstrated that the experts had misinterpreted case law,898 treaty provisions,899 and other legal materials.900 He held that the approaches would fail in operational practice and lead to devastating effects.901 In this regard, he explained that Schmitt’s approach to the requirement of direct causation would ‘invite excessively broad targeting policies prone to error, arbitrariness, and abuse’.902 On the other hand, he illustrated that some of the approaches do not significantly deviate from those in the Guidance.903 For instance, with regard to Boothby’s approach to preparatory measures, deployments and return, he stated that it ‘does little more than reformulate the Guidance’s position in different terms.’904 He concluded that the four experts could not offer a ‘theoretically coherent and practically convincing alternative to the approach proposed in the Interpretive Guidance.’905 Melzer did not deviate from the Guidance’s positions but strengthened them. However, unlike Henckaerts’ response to criticism of the Study, Melzer’s response did not establish the final say on the ‘correctness’ of the Guidance’s interpretations in academic discourse since the critics renewed their positions on several occasions especially with regard to the controversially discussed interpretations.906

8 95 896 897 898 899 900 901 902 903 904 905 906

Ibid, 894–​5. Ibid, 898. See e.g. ibid, 837–​56, 859. Ibid, 876–​7. Ibid, 886–​8. Ibid, 888–​9. See e.g. ibid, 854–​5. Ibid, 867–​8. See e.g. ibid, 848–​50. Ibid, 883. Ibid, 915. See in this Chapter, at 4.4.1.

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Little Use in the Jurisprudence of International Courts and Tribunals 4.2 When the Guidance was published in 2009, the work of the icty, the ictr and the Special Court for Sierra Leone was already drawing to a close.907 The Guidance was not at all referred to in the remaining judgments of the ictr and the Special Court for Sierra Leone, and only once in the remaining icty judgments. However, no conclusions should be drawn from the absence of references to the Guidance regarding its acceptance by these Courts. In general, the issue of direct participation in hostilities did not concern many areas of jurisdiction of these tribunals in the judgments after the Guidance’s publication. Where it did cause concern, it was not problematic to the level of in-​depth detail dealt with in the Guidance. Basic questions on the issue of direct participation in hostilities, such as who constitutes a civilian, were already dealt with in the tribunals’ case law before 2009 by taking into account the ap Commentary.908 Moreover, as explained above,909 at the time the Guidance was published, international criminal law had become a separate specialised field. Recourse to ihl to establish rules was no longer necessary. In the one judgment of the icty that involved the Guidance,910 the Đorđević Trial Chamber discussed the legality of targeting civilians. It quoted from the Guidance, which was introduced as coming from an ‘authoritative’ body, the continuous combat function concept.911 However, while appreciating the continuous combat function concept to ‘be relevant to determining the legality of targeting a particular individual in certain circumstances’ in the case at hand, the Chamber quickly neglected the direct participation of the targeted victims.912 Beyond that, with regard to the principle of presumption of status of civilian, the Trial Chamber quoted in a footnote next to the Additional Protocols, the Guidance’s interpretation that the principle of presumption also applies to the question of ‘whether a person has become a member of an organised armed group belonging to a party to the conflict.’913

907 After the publication there were only 28 more ictr judgments and 30 more icty judgments. The Special Court for Sierra Leone only dealt with four further cases. 908 See in this Chapter, at 2.1.3 and 2.1.4. 909 See in this Chapter, at 1.1.4 and 2.1.6 910 For citations of the Guidance in briefs, dissenting opinions and other documents, see Crawford, Non-​Binding Norms in International Humanitarian Law, pp. 214–​5. 911 icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) para. 2054. 912 Ibid. 913 Ibid, para. 2066 (fn. 7110). Furthermore, the Chamber referred to the Guidance for the assessment whether a doubt as to status of civilian exists, see para. 2066 (fn. 7111).

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In the jurisprudence of the International Criminal Court, the Guidance has played a similarly restrained role. In Mbarushimana, the Court observed that there is no customary or treaty law definition of what constitutes direct participation in hostilities, ‘although useful guidance is provided by the [icrc].’914 In the end, however, the Court made no use of the Guidance since it held that some of the victims had clearly not participated in hostilities and thus found no reason to discuss the borderline cases.915 In Katanga, the Court similarly observed that treaty law and customary law do not define direct participation in hostilities. The Court adopted the definition of the ap Commentary on Article 13 (3) ap ii but did not refer to the Guidance.916 In Lubanga Dyilo, in discussing the crime of using children in hostilities, the defence invoked the Guidance’s three constitutive elements for direct participation in hostilities to argue that children were not used to participate ‘actively’ in hostilities in the case at hand.917 The Trial Chamber, however, made no reference to the Guidance in its reasoning when discussing the distinction between ‘active’ and ‘direct’ participation. In the end, the Trial Chamber concluded that ‘active’ and ‘direct’ participation are distinct concepts and that the term ‘active’ indicates a broader range of activities than the term ‘direct’.918 While the Trial Chamber, thus, ensured an effective protection under Article 8 (2) (e) (vii) Rome Statute for children not participating ‘in frontline activities, but are essential to combat’, it implicitly deviated from the Guidance, which treats both terms synonymously.919 Lubanga Dyilo appealed against the decision, alleging an error in failing to apply the definition of ‘active participation’. He claimed that ihl makes no distinction between active and direct participation in hostilities invoking that next to the English and French wording, the Guidance clarifies that both

914 icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​ 01/​04-​01/​10-​465-​Red (16 December 2011) para. 148. 915 Ibid, para. 149. 916 icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​ 01/​04-​01/​07-​3436 (7 March 2014) para. 790. 917 icc, Prosecutor v Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) Case No icc-​01/​04-​01/​06, (14 March 2012) paras. 581–​2, 585. 918 Ibid, paras. 627–​8. 919 See e.g. Melzer, Interpretive Guidance, pp. 12, 43. Cf. also Stahn, ‘The International Committee of the Red Cross and the Development of International Criminal Law’, pp. 208–​9. In Katanga, the International Criminal Court decided similarly with regard to Article 8 (2) (c) Rome Statute, see icc, Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) Case No icc-​01/​04-​01/​07-​3436 (7 March 2014) para. 790.

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terms are used synonymously.920 While the Appeals Chamber observed that Lubanga Dyilo’s argument is correct with regard to the context of Common Article 3 for which it referred to the Guidance,921 it concluded that the term ‘participate actively in hostilities’ in Article 8 (2) (e) (vii) Rome Statute is not to be interpreted in the same way due to the different purposes of the provisions,922 which demonstrates once more the emancipation of international criminal law from ihl. The Appeals Chamber again referred to the Guidance when explaining the purpose of Common Article 3.923 Overall, the jurisprudence of international courts and tribunals does not say much about the acceptance of the Guidance. There are too few cases in which the Guidance was used, or failed to be used, when it could have been. Nonetheless, it is apparent that the Guidance was not systematically ignored or rejected but described as ‘useful’ and coming from an ‘authoritative’ body.924 4.3 Cautious Reactions in State Practice The reactions of governments to the Guidance were very cautious. There was no rejection of the entire Guidance but only of individual components. Nonetheless, governments referred to the Guidance for support of their legal positions. A similar picture emerges from the few national legal proceedings that took the Guidance into consideration.925 4.3.1 Reactions of Governments Unlike for the Study on customary ihl, the US government did not make an explicit statement on the Guidance.926 Likewise, the DoD Manual does not contain an individual note on the Guidance. However, contrary to the Study, there are several references to the Guidance in the DoD Manual’s substantive part. For instance, when the DoD Manual emphasises the US rejection of the 920 icc, Prosecutor v Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) Case No icc-​01/​04–​01/​06 A 5 (1 December 2014) para. 318. 921 Ibid, para. 323. 922 Ibid, para. 324. 923 Ibid. For citations of the Guidance in briefs, submissions, statements and other documents in International Criminal Court proceedings, see Crawford, Non-​Binding Norms in International Humanitarian Law, pp. 214–​5. 924 icc, Prosecutor v Mbarushimana (Decision on the confirmation of charges) Case No icc-​ 01/​04-​01/​10-​465-​Red (16 December 2011) para. 148; icty, Prosecutor v Đorđević (Judgment) Case No it-​05-​87/​1-​T (23 February 2011) para. 2054. 925 See also Crawford, Non-​Binding Norms in International Humanitarian Law, pp. 214–​6. 926 Note that commentators called on the US government to formally respond to the Guidance, J. J. Marsh and S. L. Glabe, ‘Time for the United States to Directly Participate’ (2011) 1(13) Virginia Journal of International Law Online 1–​11 at 6–​7.

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customary nature of Article 51 (3) ap i as a whole, but clarifies that the US supports the customary principle on which this provision is based, it points out that the US has a similar view on the status of the Guidance. Thus, on the one hand, the US considers parts of the Guidance to be consistent with customary international law. On the other hand, the US ‘has not accepted significant parts of the icrc’s interpretive guidance as accurately reflecting customary international law.’927 Although this statement implies that the US has previously clearly and officially stated its position on the Guidance, the DoD Manual does not refer to official positions of the US government, but only to an article by Stephen Pomper (then Assistant Legal Adviser in the US Department of State) written in his personal capacity,928 as well as a concurring opinion of Judge Williams in Al-​Bihani v Obama.929 When explaining the principle of necessity, the DoD Manual refers to the Guidance as representative of the legal opinion that military necessity imposes restraints on the use of force in a direct attack, on which the Guidance builds the graduated use of force standard.930 The DoD Manual, however, rejects this interpretation as not reflecting customary or treaty international law applicable to the US.931 Other explanations of the DoD Manual can be seen as implicit reactions to the Guidance. For instance, the DoD Manual objects to the ‘revolving door protection’ by referring to Kenneth Watkin’s critique on the Guidance in the nyu Journal of International Law and Politics.932 Moreover, in a footnote on the US statement of understanding regarding the meaning of the phrase ‘direct part in hostilities’ in Article 1 of the Optional Protocol to the Convention on the 9 27 Office of General Counsel Department of Defense, ‘DoD Manual’, para. 5.9.1.2. 928 S. Pomper, ‘Toward a Limited Consensus on the Loss of Civilian Immunity in Non-​ International Armed Conflict: Making Progress through Practice’ (2012) 88 ils 181–​93 at 181 (But noting at 186 to which the DoD Manual refers that the US government in its habeas filings made clear that it did not regard the Guidance as an authoritative statement of the law without, however, providing a reference for this). See also Pomper, ‘Remarks by Stephen Pomper’, 307–​10 (although speaking in his personal capacity, he tries to accurately reflect the US government perspective on the at this time still unpublished Guidance). 929 US Court of Appeals, Al-​Bihani v Obama, 590 F 3d 866 (dc Cir 2010) concurring opinion by Judge Williams, p. 6. 930 Office of General Counsel Department of Defense, DoD Manual, para. 2.2.3.1. 931 Ibid, para. 2.2.3.1. 932 Ibid, para. 5.9.4.2 referring to Watkin, ‘Opportunity Lost’. Contrary to the Guidance, the DoD Manual holds the view that civilians, who have taken a direct part in hostilities must permanently cease their participation to be protected from attacks, see Office of General Counsel Department of Defense, DoD Manual, para. 5.9.4.1.

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Rights of the Child on the Involvement of Children in Armed Conflict, the DoD Manual clarifies that this statement was only made in the context of the Optional Protocol and may not be adopted to other treaties.933 While the Guidance itself does not refer to the US statement of understanding, Nils Melzer in his response to the critique on the Guidance quotes this statement as support for the Guidance’s restrictive interpretation of the term ‘participation’.934 Apart from these direct and indirect rejections, the DoD Manual also corresponds with the Guidance in some of its explanations without making a reference to it.935 For instance, the view that it depends on the circumstances of the individual case whether an act constitutes direct participation in hostilities corresponds with the Guidance’s concept of direct participation in hostilities.936 The DoD Manual, however, does not refer to the Guidance, but to the summary report on the third expert meeting on the notion of direct participation in hostilities underlying the Guidance.937 Thus, in contrast to the Study, the US government does not take an explicit position on the Guidance, although it also contains interpretations with which the US does not agree, in particular the assumption that Article 51 (3) ap i and Article 13 (3) ap ii reflect customary international law. One reason for the different reaction could be that the discussion of the Guidance is less complex. Some of the Guidance’s interpretations could be rejected based on the criticism from academia. At the same time, the Guidance contains interpretations that justify the conduct of the US in targeting members of armed groups –​as demonstrated by the 2010 Memorandum for the Attorney General on the lethal operations against Shaykh Anwar al-​Aulaqi in Yemen.938 The Memorandum cites the Guidance on two instances, both with regard to the continuous combat function concept in its temporal dimension. First, it uses the Guidance to neglect the view that in non-​international armed conflicts civilians may

9 33 Office of General Counsel Department of Defense, DoD Manual, para. 4.10.5.2 (fn. 443). 934 Melzer, ‘Keeping the Balance Between Military Necessity and Humanity’, 888. 935 Cf. M. Lesh, ‘Direct participation in hostilities’, in R. Liivoja and T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (Taylor and Francis, 2016), p. 182 (concluding that the DoD Manual ‘positions itself somewhere between the icrc Guidance and the Targeted Killing Case.’). 936 Cf. Melzer, Interpretive Guidance, pp. 41–​2. 937 Office of General Counsel Department of Defense, DoD Manual, para. 5.9.3. 938 US Department of Justice, Office of Legal Counsel, ‘Memorandum for the Attorney General, Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-​Aulaqi’, Washington, 16 July 2010 accessed 31 August 2023.

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only become subject to attack when directly participating in hostilities since, according to the Guidance, ‘a member of a non-​state armed group can be subject to targeting by virtue of having assumed a “continuous combat function” on behalf of that group’.939 Second, the Memo quotes from the Guidance that the language of Common Article 3 makes clear that members of non-​state armed groups ‘are considered as “taking no active part in hostilities” only once they have disengaged from their fighting function … or are placed hors de combat; mere suspension of combat is insufficient.’940 Moreover, although the relevant materials do not refer to the Guidance, the increase of the US official statements on the ‘capture rather than kill’ approach shortly after the Guidance’s publication suggests that the Guidance pushed the US government to reveal its position.941 The Israeli government explicitly rejects the Guidance’s continuous combat function concept in its personnel dimension in its report on the 2014 Gaza Conflict, which presents Israel’s legal positions on the conduct of hostilities, including the targeting of armed group members. Israel argues that there is no requirement of continuous combat function under customary international law for members of organised armed groups to be legally subject to attack.942 Instead of the continuous combat function concept, the report adopts the position that ‘members of organised armed groups may be attacked at any time by the sole virtue of their membership’.943 9 39 Ibid, pp. 21–​2 (fn. 28). 940 Ibid, pp. 37–​8 quoting Melzer, Interpretive Guidance, p. 28. 941 Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities’, 231–​2 referring to The White House, ‘Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’, Washington, 23 May 2013 accessed 31 August 2023. 942 State of Israel, ‘The 2014 Gaza Conflict: Factual and Legal Aspects’, May 2015 accessed 31 August 2023, paras. 264–​6. In accordance with the report of the Israeli government on the 2014 Gaza Conflict, Schmitt and Merriam documented the practice of the Israel Defense Forces, which follow the Guidance’s approach to organised armed groups, including the assumption that groups may consist of both military and non-​military wings, but not the continuous combat function concept. The authors cite an Israeli Military Advocate General officers stating that the ccf concept causes a legal imbalance and that it has no basis in treaty law binding upon Israel or customary international law, see M. N. Schmitt and J. J. Merriam, ‘The Tyranny of Context: Israeli Targeting Practices in Legal Perspective’ (2015) 37(1) University of Pennsylvania Journal of International Law 53–​139 at 112–​3. 943 State of Israel, ‘The 2014 Gaza Conflict: Factual and Legal Aspects’, May 2015 accessed 31 August

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The two reports of the Turkel Commission, installed by the Israeli government, demonstrate a rather ambivalent position towards the Guidance. The first report cites the Guidance’s three constitutive elements to qualify an act as direct participation in hostilities. At the same time, it notes that the Guidance ‘has generated considerable controversy, and the participants were not able to reach a broad consensus regarding the definition of direct participation in hostilities’ and that it would therefore be used cautiously in the report.944 Alongside the diverse critique in the 2010 nyu Journal of International Law and Politics, it refers to a report by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions945 in order to demonstrate a lack of international consensus on the Guidance.946 Nevertheless, after concluding that activists who took part in the violence directly participated in hostilities based on the criteria established in the Targeted Killings case of the Israeli Supreme Court,947 the report additionally notes that ‘the Commission would have reached the same conclusion by applying the standards set out in the icrc dph Interpretive Guidance.’948 Moreover, a reference is made to the Guidance on the legal consequences for targeting civilians if the threshold of an armed conflict is not reached.949 The second report of the Turkel Commission refers only once to the Guidance, for general information on direct participation in hostilities in the context of targeting. It also points to the critique on the Guidance and the response by Nils Melzer.950 The UK’s practice is also revealing. Shortly after the publication of the Guidance, the UK Ministry of Defence amended the 2004 MoD’s text on

944 945 946 947 948 949 9 50

2023, para. 264. But see R. Goodman, ‘Resource: The Israeli Government’s Legal Position on Who Is a “Combatant” in the Gaza Conflict [Updated]’, Just Security, 8 August 2014 (according to whom this position is however ‘at least stated at that high level of abstraction, consistent with the … Guidance’). The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Report Part One’, pp. 235–​6. UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston: Study on Targeted Killings, UN Doc a/​h rc/​14/​24/​ Add.6 (28 May 2010), p. 20, para. 62. The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Report Part One’, pp. 235–​6. Supreme Court of Israel, Public Committee against Torture in Israel v Government of Israel (Judgment) Case No hcj 769/​02 (13 December 2006). The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Report Part One’, p. 240. Ibid, p. 238. The Public Commission to Examine the Maritime Incident of 31 May 2010 –​The Turkel Commission, ‘Second Report’, p. 60.

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military necessity in 2010. This text was quoted by the Guidance as support of state practice for the reading of the principle of military necessity as implementing restrictions on the use of force in direct attack.951 According to the amended version: Military necessity is now defined as ‘the principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war’ … Put another way, a state engaged in an armed conflict may use that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial … submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.952 Although the second part of the amended version resembles the prior version, according to Ka Lok Yip, this amendment was established in order to avoid the conclusion that the UK adopts the graduated use of force standard as proposed by the Guidance in Part ix.953 In Serdar Mohammed, the UK Secretary of State quoted the Guidance in the submission that international law authorises states to target non-​state actors participating in non-​international armed conflicts.954 The German military manual provides the following note on the Guidance: This study is legally non-​binding and contains recommendations and approaches that are helpful, in particular, in identifying by legal means

951 Melzer, Interpretive Guidance, p. 79 quoting UK Ministry of Defence, MoD Manual, para. 2.2 (‘Military necessity permits a state engaged in an armed conflict to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources’). 952 UK Ministry of Defence, Joint Services Publication 383 –​The Manual of the Law of Armed Conflict Amendment 3, September 2010 accessed 31 August 2023, p. 5. 953 Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities’, 230–​1. 954 Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843, paras. 205 and 237.

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persons in non-​ international armed conflicts that may lawfully be engaged in combat.955 Although in its instructions the Manual does not make explicit references to the Guidance, it seems that it adopts some of the Guidance’s explanations, including the continuous combat function concept in its temporal dimension.956 While some states in their military manuals do not mention the Guidance at all,957 other states’ military manuals refer to the Guidance without a note of caution. The Malian military manual adopts the three cumulative criteria for the determination of direct participation in hostilities from the Guidance.958 The Danish military manual adopts the three cumulative criteria959 as well as the continuous combat function concept in its temporal dimension960 from the Guidance, stressing that the Guidance ‘makes a significant contribution towards clarifying the conditions for the loss of protection for civilians.’961 The Colombian military manual makes several references to the Guidance. For instance, it quotes the MoD’s interpretation of the principle of military necessity from Part ix of the Guidance, which was amended in 2010, as stated above.962 Moreover, the Colombian manual refers to the Guidance for the combatant privilege,963 the definition of civilian,964 adopts the continuous combat function concept from the Guidance in both its temporal and its personnel dimensions965 as well as the three constitutive elements for direct participation in hostilities.966 However, while the first edition of the Colombian 955 Bundesministerium der Verteidigung (Germany), Law of Armed Conflict –​Manual, para. 131. 956 Ibid, para. 1308 (‘persons may be attacked by military means … who, as a result of their role and function within the enemy forces, are continuously participating in hostilities (continuous combat function) and thus are a legitimate military target, even outside of their participation in specific acts of hostility’). 957 In this respect, it is noteworthy that the New Zealand military manual, published in 2017 and often referring to the Study, does not address the Guidance, although it provides detailed information on direct participation in hostilities, see New Zealand Defence Force, Manual of Armed Forces Law, Chapter 6, Section 5. 958 Rèpublique du Mali, Ministère de la Dèfense et des Anciens Combattants, Etat Major Général des Armées, Manuel du dca, pp. 69–​70. 959 Danish Ministry of Defence, Military Manual, p. 168. 960 Ibid, p. 181. 961 Ibid, p. 121. 962 Comando General de las Fuerzas Militares, Manual De Derecho Operacional 2015, p. 28. 963 Ibid, p. 29. 964 Ibid, p. 35. 965 Ibid, pp. 36–​7. 966 Ibid, pp. 37–​8.

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Operational Law Manual published in 2009 also incorporated the graduated use of force standard,967 this was not repeated in the 2015 edition.968 Yet, the 2009 edition did not cite the Guidance for the graduated use of force standard, but Nils Melzer’s book on targeted killing.969 The new French military manual published in 2022 cites the Guidance as an example of documents ‘relevant to the law of armed conflict’.970 However, the manual states that the Guidance’s positions ‘are those of the icrc alone’.971 It refers to a definition of direct participation in hostilities ‘adopted by the French authorities’972 and cites the Guidance only twice when stating that propaganda does not classify as conduct of hostilities.973 4.3.2 Usage in National Legal Proceedings In the case of Al-​Bihani v Obama before the US Court of Appeals, relying on the Guidance’s continuous combat function concept in its personnel dimension, Al-​Bihani submitted that he was not a member of a non-​state organised armed group, but that he was a civilian. He argued that thus he could not be permissibly detained by US forces.974 In his concurring opinion, to which the DoD Manual refers,975 Judge Williams, however, rejected Al-​Bihani’s submission holding that the Authorization for Use of Military Force (aumf) allowed the detention of Al-​Bihani regardless of whether he was a member of the organised armed group or only supported this group.976 With regard to the Guidance Judge Williams stated:

967 Comando General de las Fuerzas Militares, Manual De Derecho Operacional 2009, p. 88 (‘El concepto de necesidad militar contiene en sí un importante elemento de restricción: sólo se empleará la fuerza necesaria para cumplir con los propósitos militares; cualquier uso de la fuerza que sobrepase ese objetivo va en contravía de la necesidad militar’). See also Melzer, ‘Keeping the Balance Between Military Necessity and Humanity’, 910. 968 For further discussion, see Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities’, 230. 969 Comando General de las Fuerzas Militares, Manual De Derecho Operacional 2009, p. 88 referring in fn. 205 to Nils Melzer, Targeted Killing in International Law (oup, 2008), p. 286. 970 Ministère des Armées de la République Française, Manuel de droit des operations militaires, p. 94 [translated by the author]. 971 Ibid, p. 112. 972 Ibid [translated by the author]. 973 Ibid, pp. 115–​6 (fn. 291 and 296). 974 US Court of Appeals, Al-​Bihani v Obama, 590 F 3d 866 (dc Cir 2010) concurring opinion by Judge Williams, p. 4. 975 See in this Chapter, at 4.3.1. 976 US Court of Appeals, Al-​Bihani v Obama, 590 F 3d 866 (dc Cir 2010) concurring opinion by Judge Williams, pp. 4–​5.

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The icrc document does not alter this analysis. The work itself explicitly disclaims that it should be read to have the force of law. ‘[W]‌hile reflecting the icrc’s views,’ the authors write, ‘the Interpretive Guidance is not and cannot be a text of a legally binding nature.’ … Even to the extent that Al Bihani’s reading of the Guidance is correct, then, the best he can do is suggest that we should follow it on the basis of its persuasive force. As against the binding language of the aumf and its necessary implications, however, that force is insubstantial.977 In ny Times Co v US Department of Justice, the US Court of Appeals referred to the Guidance for the continuous combat function to argue that the targeting of Al-​Aulaqi was lawful.978 In Germany, the Guidance was referred to in two national criminal proceedings.979 In the Mir Ali case, as well as in the Kunduz case, the German Federal Prosecutor cited the Guidance’s continuous combat function concept in its personal and temporal dimensions to support the conclusion that there were no breaches of ihl that led to the terminating of criminal investigations.980 Additionally, in both cases, the German Federal Prosecutor also referred to the graduated use of force standard. However, it stated that this standard did not impose additional limits on the use of force.981 In a judgment on the use of lethal force during demonstrations near the Gaza border in 2018, the Israeli Supreme Court adopted the Guidance’s three constitutive elements for direct participation in hostilities, according to which

9 77 Ibid, p.6. 978 US Court of Appeals, ny Times Co v US Department of Justice, 756 F 3d 100 (2d Cir 2014) pp. 135, 148. For citations of the Guidance in briefs, oppositions and other documents in US domestic legal proceedings, see Crawford, Non-​Binding Norms in International Humanitarian Law, p. 215. 979 See on this also Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities’, 230. 980 Der Generalbundesanwalt beim Bundesgerichtshof, Drohneneinsatz vom 4. Oktober 2010 in Mir Ali/​Pakistan –​Verfügung des Generalbundesanwalts vom 20. Juni 2013, Case No 3 bj s 7/​12–​4 (23 July 2013) pp. 23–​5 (for an English translation see 157 ilr 722, pp. 746–​749); Der Generalbundesanwalt beim Bundesgerichtshof, Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel W., pp. 47–​8, 60. 981 Der Generalbundesanwalt beim Bundesgerichtshof, Drohneneinsatz vom 4. Oktober 2010 in Mir Ali/​Pakistan, pp. 25–​6 (157 ilr 722, 749); Der Generalbundesanwalt beim Bundesgerichtshof, Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel W., p. 60.

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it classified the demonstrators as direct participants in the armed conflict between Israel and Hamas.982 4.3.3 Assessment: No Uniform Picture in State Practice The analysis of the use of the Guidance in state practice does not provide a uniform picture. The continuous combat function concept is broadly accepted in its temporal dimension, while it is partly rejected in its personnel dimension especially by the US and Israel.983 The graduated use of force standard seems to be more rejected than approved, although the German Federal Prosecutor and the Colombian Operational Law Manual refer to Part ix of the Guidance. The three constitutive elements to qualify an act as direct participation in hostilities, conversely, has been met with acceptance. Occasionally, it is emphasised that the Guidance is not binding. Furthermore, reference is made to the criticism of the Guidance to indicate that the Guidance should be considered with caution. Nevertheless, the Guidance has succeeded in introducing new concepts into legal practice and in pushing states to clarify their legal position. It has become a point of reference for the dealing with direct participation in hostilities. States give so much weight to the Guidance that its positions must be explicitly dealt with and cannot simply be ignored. However, the Guidance does not succeed in implementing all recommendations as state of the law, as can be seen in particular with the rejection of the graduated use of force standard –​which is based on a reinterpretation of the principle of military necessity –​and the continuous combat function concept in its personnel dimension. The Guidance’s Marks of Authority 4.4 The Guidance was subject to criticism in academia, as well as in state practice. Nevertheless, in the legal practice of international courts and tribunals, as well as the executive and judiciary of states, the Guidance was point of reference for the interpretation of ihl.984 This section examines the marks of the Guidance’s authority. 982 Supreme Court sitting as the High Court of Justice, Yesh Din et al v the idf Chief of Staff et al., Judgment of 30 April 2018, hcj 3003/​18 and hcj 3250/​18 para. 45. 983 Cf. also Schmitt and Merriam, ‘The Tyranny of Context’, 114–​5 (‘It is clear that the idf, like the U.S. armed forces, takes a broader view of acts that qualify as direct participation than set forth in the Interpretive Guidance’). 984 The same can be observed for the practice of international institutions, see e.g. UN Human Rights Council, Study on Targeted Killings, paras. 62–​9 (describing the Guidance as ‘a useful starting point for discussion’ and holding that ‘[i]‌n general, the icrc’s approach is correct, and comports both with human rights law and ihl’).

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4.4.1 Expertise The Guidance represents expertise on the subject of direct participation of hostilities. The author Nils Melzer and other employees of the icrc legal division, who were involved in the preparation of the Guidance, are respected experts of ihl and provide knowledge about situations of direct participation of hostilities in armed conflicts. Moreover, the Guidance is based on an expert process involving legal experts from academia, the military, governmental, and non-​governmental organisations,985 and claims to take into account the diverse opinions expressed during the expert process.986 This consideration of different expertise was positively received by some legal scholars and probably contributes to the authority of the Guidance.987 However, after its publication, the Guidance was subject to criticism from academia, as shown above,988 especially by those military experts who had left the expert process.989 Some of the criticism was even explicitly directed against the icrc’s expertise in matters related to the use of force in armed conflicts and modern combat.990 In this context, reference was made to the lack of success of previous interpretive projects initiated by the icrc on the use of force, such as the ‘Superfluous Injury or Unnecessary Suffering’ project.991 992 Against this background, Michael Schmitt predicted that: ‘States involved in 21st century warfare are unlikely to view the document favourably, let alone use it to provide direction to their forces in the field.’993 In addition, it has been argued that the Guidance does not reflect de lege lata as it disregards state practice, or that its conclusions are not practicable for the military.994 How did this criticism affect the Guidance’s authority in relation to expertise? The above analysis reveals that the parts of the Guidance that had been entirely refuted by military experts were also rejected within state practice. The objections to the graduated use of force standard and the personal dimension

9 85 986 987 988 989 9 90 991 9 92 993 994

Melzer, Interpretive Guidance, p. 9. Ibid, pp. 9–​10. See e.g. Alam, ‘An Overview’, 75. See in this Chapter, at 4.1. For an analysis of the role of the expert process for the authority of the Guidance, including the fact that some of the experts had left this process, see in this Chapter, at 4.4.3. Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 795–​6. R. M. Coupland, The SIrUS Project: Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suffering” (icrc, 1997). Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 795–​6. Schmitt, ‘Deconstructing Direct Participation in Hostilities’, 699. For further impressions on the criticism, see in this Chapter, at 4.1.6.

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of the continuous combat function concept are a case in point.995 Conversely, those parts of the Guidance that were less criticised by military experts, or even supported, found acceptance by states’ executive and judiciary, such as the time dimension of the continuous combat function concept or the three cumulative criteria for qualification of an act as direct participation of hostilities. Accordingly, it can be assumed that the criticism from military experts is relevant to the Guidance’s acceptance as an authoritative statement of the law in the legal practice of states.996 Similarly, but to a certain extent at the other end of the spectrum, a report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions correlates with the criticism made by human rights lawyers regarding the Guidance.997 Nevertheless, despite the criticism that also reveals that the Guidance is taken seriously,998 the Guidance has become a main reference point for any discussion on the subject of direct participation of hostilities, including those parts that were met with criticism by military experts.999 This is partly demonstrated in the above analysis of legal practice,1000 or the use of the Guidance by legal scholars for evaluating state practice or court decisions,1001 but also by the Guidance’s role in expert processes after its publication in 2009. For instance, the Humanitarian Policy and Conflict Research Manual (hpcr Manual) and the Tallinn Manual adopt their positions from the Guidance or cite it as representative for a certain position on the subject matter, if there was no unanimity between the experts involved.1002 What is striking is that, although partly the 995 Cf. Yip, ‘The icrc’s interpretive guidance on the notion of direct participation in hostilities’, 236. 996 Cf. Sivakumaran, ‘Making and Shaping the Law of Armed Conflict’, 149–​52. 997 UN Human Rights Council, Study on Targeted Killings, paras. 65–​9 (holding that ‘the ccf category is, de facto, a status determination that is questionable given the specific treaty language that limits direct participation to “for such time” as opposed to “all the time.”’ However, the Special Rapporteur also claims that if states accept the continuous combat function concept they have to implement the whole Guidance). 998 Cf. R. S. Taylor, ‘The Capture Versus Kill Debate: Is the Principle of Humanity Now Part of the Targeting Analysis When Attacking Civilians Who Are Directly Participating in Hostilities?’ (2010) The Army Lawyer 103–​11 at 104. 999 Cf. Shereshevsky, ‘Back in the Game’, 15–​6; Venzke, ‘Between Power and Persuasion’, 368. 1000 See in this Chapter, at 4.2 and 4.3. 1001 See e.g. D. Akande, ‘us/​n ato Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?’, ejil: Talk!, 13 September 2009; S. Aughey and A. Sari, ‘ihl Does Authorise Detention in niac: What the Sceptics Get Wrong’, ejil: Talk!, 11 February 2015; R. Chesney, ‘Is dph the Relevant Standard in Pakistan? An Important Element in the Debate Missing from bij’s Report’, Lawfare, 6 February 2012. 1002 For the hpcr Manual see Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the hpcr Manual, pp. 118–​20, 144. For the Tallinn

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same experts were involved in the expert processes to the hpcr Manual and the Tallinn Manual, including those military experts who had left the expert process to the Guidance,1003 the approval of some of the Guidance’s positions varies between the two manuals. For instance, the hpcr Manual notes that its group of experts did not unanimously accept the three constitutive elements for the qualification of an act as direct participation in hostilities.1004 In comparison, the Tallinn Manual emphasises that its group of experts agreed with these criteria.1005 Since the first volume of the Tallinn Manual was published in 2013, three years after the hpcr Manual, this implies that over time the Guidance asserts itself against the criticism to some extent and becomes more accepted with regard to certain positions. This observation is supported by the fact that those military experts, who in the beginning criticised the Guidance, started to refer to the Guidance after a while.1006 One reason for this development in the acceptance of the Guidance is probably that no coherent and practicable alternatives to the Guidance have been proposed.1007 This is illustrated by a statement in a report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions: Given the icrc’s promulgation of its Guidance, and the hesitant or uncertain response of some States to date, in order for the issues to be addressed comprehensively, it would be very timely for there to be a convening of State representatives, including particularly those from key military powers, together with the icrc and experts in human rights

Manual see Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare, pp. 85, 89, 101, 103, 104, 180, 182 . See also C. Allan, ‘Direct Participation in Hostilities from Cyberspace’ (2013) 54(1) Virginia Journal of International Law 173–​93 (who illustrates that the Guidance and the Tallinn Manual agree on several points). 1003 Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the hpcr Manual, pp. 18–​9; Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare, pp. 6–​7. 1004 Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the hpcr Manual, p. 121 (A number of members of the Group of Experts stated that these criteria do not reflect de lege lata and impose inappropriate constraints on the scope of direct participation in hostilities). 1005 Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare, p. 102. 1006 See e.g. Schmitt, ‘The Status of Opposition Fighters’, 124. Note in this regard that Michael Schmitt and Kenneth Watkin participated in the Turkel Commission, which referred to the Guidance, see in this Chapter, at 4.3.1. 1007 Goodman and Jinks, ‘An Introduction to the Forum’, 638 (‘In our view, no single critical perspective, if pushed to its logical extreme and considered in isolation, could produce an adequate interpretation of dph’); Cryer, ‘See a Little Light’, p. 136.

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and ihl [to] discuss and revise (if necessary) the icrc’s Guidance after a careful review of best practices.1008 However, this development in the acceptance of the Guidance does not cover all of its positions.1009 Some of the Guidance’s positions, and in particular the graduated use of force standard where even the lack of regulation including the need for an alternative is disputed,1010 are still widely rejected. Nevertheless, even with regard to those positions, the Guidance is taken into account in debates and as a starting point for proposed solutions.1011 Although the icrc has not started an updating process for the Guidance, it uses the results of the Guidance in new expert processes. It remains to be seen whether this practice will further promote the acceptance of the Guidance.1012 4.4.2 Institutional Authority of the icrc The Guidance was adopted by the icrc Assembly before publication1013 and expressly states that it reflects the institutional view of the icrc.1014 In this context, reference is made to the neutrality and impartiality of the icrc, as well as its ‘mandate’ from Article 5 (2) (c) and (g) Statutes of the Movement.1015 Indeed, the Guidance was linked to the reputation of the icrc. For instance, Damien van der Toorn stated that the Guidance can be viewed as a secondary source of international law because ‘the icrc is the recognised custodian of ihl and its views on ihl are highly regarded.’1016 Accordingly, the Guidance benefits from the icrc’s authority1017 and, as the statement by van der

1 008 1009 1010 1011

UN Human Rights Council, Study on Targeted Killings, paras. 68–​9. Cf. Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 288. See e.g. Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 810. See e.g. R. Goodman, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24(3) ejil 819–​53. But, see the reply by M. N. Schmitt, ‘Wound, Capture, or Kill: A Reply to Ryan Goodman’s “The Power to Kill or Capture Enemy Combatants”’ (2013) 24(3) ejil 855–​61. See also D. J. Frakt, ‘Direct Participation in Hostilities as a War Crime: America’s Failed Efforts to Change the Law of War’ (2012) 46(3) Valparaiso University Law Review 729–​64; J. D. Ohlin, ‘The Duty to Capture’ (2013) 97(4) Minnesota Law Review 1268–​342. 1012 See e.g. Gloria Gaggioli, The Use of Force in Armed Conflicts: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms (icrc, Geneva 2016), pp. 1, 23, 31, 35. 1013 icrc, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law: Adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009’ (2008) 90(872) irrc 991–​1047 at 991. 1014 Melzer, Interpretive Guidance, pp. 9–​10. 1015 Ibid; Kellenberger, ‘Foreword 2009’, p. 6. 1016 van der Toorn, ‘Direct Participation in Hostilities’, 17. See also Alam, ‘An Overview’, 75. 1017 See Chapter 1.

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Toorn implies, also from the success of prior publications such as the Pictet Commentaries, the ap Commentary and the Study. Criticism of the icrc voiced in the US in 2005 that was partly linked to the Study1018 was not explicitly associated with the Guidance, although some criticism of the Guidance came again from US lawyers. For the most part, those US lawyers who criticised the Guidance cited, alongside the Pictet Commentaries and the ap Commentary, the Study that they had criticised only a few years earlier.1019 4.4.3 Underlying Process The underlying expert process to the Guidance implies a consideration of different views, which, as already argued in relation to expertise, contributes to the Guidance’s authority. However, one-​third of the participating experts, and in particular military experts, withdrew from the expert process.1020 The icrc decided to publish the Guidance as a view of its own and not to list the participating experts.1021 Some of these experts later criticised the Guidance, including the procedure of the underlying expert process.1022 They complained that the Guidance adopted interpretations that had been met with serious concerns at the expert meetings.1023 At the same time, no expert who revealed his or her participation publicly, defended the Guidance or the underlying expert process.1024 This withdrawal of experts and their subsequent criticism of the Guidance, including the underlying expert process, imply: First, an unprofessional approach by the icrc, which organised the expert process together with the tmc Asser Institute; and, second, that the Guidance is not based on a consensus among experts. Since the withdrawing experts were mostly military 1 018 See in this Chapter, at 3.4.2. 1019 See e.g. Schmitt, ‘A Critical Analysis’, 12–​4, 23, 39; Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 287; Watkin, ‘Opportunity Lost’, 652. But see also Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 829 (referring in his critical analysis of the Guidance to the criticism of the Study). 1020 Schmitt and Parks, for instance, revealed that he withdrew from the process, see Schmitt, ‘A Critical Analysis’, 6; Parks, ‘No Mandate, No Expertise, and Legally Incorrect’, 783–​5 (fn. 56), 795. 1021 Kellenberger, ‘Foreword 2009’, p. 6. 1022 See in this Chapter, at 4.1.5. 1023 See e.g. Schmitt, ‘A Critical Analysis’, 32; Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 290. 1024 Only William Fenrick revealed that he did not request to be removed from the list of experts despite disagreements with the final version of the Guidance, see Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 287 (fn. 2), 288 (fn. 8).

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experts, including senior advisors to governments,1025 this specifically indicates that military experts in general, as well as certain states, disagree with the Guidance –​even if these experts participated in their private capacity and other military experts did not withdraw from the process.1026 The Guidance sought to avoid the impression of disagreement with the Guidance by participating experts. It only highlights where no consensus was reached among the experts in footnotes that refer to the relevant discussions.1027 Nevertheless, the continuous reference in legal practice and academia to the disagreement among the participating experts demonstrates that this impression still exists and negatively affects the Guidance’s authority. 4.4.4 Form Regarding the form of the Guidance, it does not formulate ‘rules’, or ‘interpretations’ of binding law, but provides ‘recommendations’. A recommendation is a suggestion or a proposal as to the best course of action.1028 However, it does not imply an absolute and binding character, and leaves the possibility for acting differently. In addition, the recommendations do not reiterate or refer to specific rules of international law. Only the commentary to the recommendations reveals their basis in international law. Likewise, the title ‘Guidance’ implies an advice or information aimed at resolving a problem or difficulty.1029 Accordingly, the Guidance neither resembles binding law, nor does it give the impression of being an interpretation of binding law. Rather, the form expresses that the Guidance is merely an attempt to solve a controversial problem and, thus, probably has little strengthening effect on the Guidance’s authority.1030 In addition, the lack of reference to binding law in the recommendations and the introduction of new terms, concepts and standards such as ‘continuous combat function’ make a clarification, and thus a study, of the commentary

1025 C. Garraway, ‘The Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”’ (2011) 87 ils 177–​86 at 180. 1026 This impression was e.g. given explicitly by Watkin, ‘Opportunity Lost’, 690–​1. 1027 Melzer, Interpretive Guidance, p. 10. But see Petrov, Expert Laws of Wars, pp. 48–​51 (revealing that the Guidance provides argumentative support only for its own interpretation and presents other views expressed during the expert process as unreasonable). 1028 Dictionary.com, ‘recommendation’ accessed 31 August 2023. 1029 Dictionary.com, ‘guidance’ accessed 31 August 2023. 1030 On the effect of similarity with legally binding material, cf. Caron, ‘The ilc Articles on State Responsibility’, 866.

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to the recommendations inevitable. This may be regarded by users as inconvenient and raise doubts about the Guidance’s accuracy. On the other hand, the Guidance is freely accessible online in six different languages, which may establish it as the starting point for any investigation of the subject of direct participation in hostilities. Depending on the circumstances, it may even be the only freely accessible source. In any case, it increases the popularity and the possibility of being applied over competing approaches from academia, which often are not freely accessible and merely published in English or French. 4.4.5 Lack of Methodological Standards As explained above,1031 often the starting point for the criticism of the Guidance from academia was the absence or weighting of legal materials. Unlike the Study, the Guidance is not based on a specific methodology that determined how the icrc arrived at the interpretations. The reason for this is that the Guidance mainly focusses on customary international law for its interpretations because the treaty rules for direct participation in hostilities do not apply universally. However, there are no uniform standards for the interpretation of rules of customary international law.1032 This lack of uniform standards as a neutral reference point for the interpretation of customary international law makes the Guidance particularly vulnerable to criticism on the correctness of its interpretations and, thus, negatively affects the authority of the Guidance.1033 4.5 Conclusion: Helpful but Not Authoritative The Guidance is a point of reference in the practice of international courts and tribunals and states, as well as in academia. Its authority is based, above all, on expertise and the reputation of the icrc. The form of the Guidance and the underlying expert process do not play a major role in the Guidance’s authority.1034 The underlying expert process in particular could probably have 1 031 See in this Chapter, at 4.1. 1032 Note, in this context, the International Law Commission’s work on the identification of customary international law, which omits the discussion of interpretation, unga, Report of the International Law Commission (2018), pp. 122–​56. 1033 On the role of interpretive standards for the acceptance of interpretations, cf. M. Waibel, ‘Interpretive Communities in International Law’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (oup, 2015), p. 150; Bianchi, ‘The Game of Interpretation in International Law’, pp. 43–​9. 1034 The same can be said for the authorship. Although Nils Melzer organised the expert process, wrote the reports of the expert meetings and published a well-​known book on the subject of direct participation in hostilities (Melzer, Targeted Killing in International

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strengthened the authority of the Guidance if not for the withdrawal of some military experts, as it would have demonstrated a consensus among experts from different fields. The lack of a clear methodology for the interpretation of customary international law negatively influences the Guidance’s authority as it allows for broad criticism of the correctness of the Guidance’s interpretations. What conclusions can be drawn from the Guidance’s authority for ihl? In contrast to the Pictet Commentaries, the ap Commentary and the Study, the Guidance is only occasionally used as an authoritative statement of what constitutes ihl.1035 This is despite its frequently being referred to in, and its significantly stimulating discussions on, direct participation in hostilities and related topics. The Guidance’s interpretations are not referred to as being similar to treaty rules, but the Guidance is considered as non-​legal material. Its interpretations are primarily accepted where they are considered helpful and not because they are considered to reflect the state of ihl. Consequently, the Guidance does not challenge the dichotomy between law and non-​law and the role of state consent as a basis of ihl. Overall, it appears that the icrc cannot establish new concepts on the law of direct participation in hostilities against the will of states. 5

New Commentaries

In 2011, the icrc initiated the writing of new Commentaries to the Geneva Conventions and the Additional Protocols.1036 The aim was to process the factual and legal developments that occurred after the adoption of these treaties and to respond to current problems in today’s armed conflicts, in which noncompliance with ihl is frequently observed, to keep the Geneva Conventions and Additional Protocols relevant.1037 In 2016, 2017 and 2020, the first three Commentaries to gc i, gc ii and gc iii were published. The new Commentary to gc iv and the new Commentary to the Additional Protocols will follow in the coming years. Experts from the Law), the analysis of reactions from academia and legal practice does not reveal whether Melzer’s authorship plays a role for the Guidance’s authority. 1035 See also K. Watkin, ‘Targeting in Air Warfare’ (2014) 44 Israel Yearbook on Human Rights 1–​68 at 27. 1036 L. Cameron and others, ‘The updated Commentary on the First Geneva Convention: a new tool for generating respect for international humanitarian law’ (2015) 97(900) irrc 1209–​26 at 1210. 1037 Maurer, ‘Foreword’; Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’, 1553.

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icrc staff, together with external experts who have been associated with the icrc for many years, are the authors of the Commentaries’ interpretations.1038 The same can be observed, with few exceptions, for the comprehensive review process.1039 The new Commentaries carefully introduce the methodology underlying the interpretations, which is primarily based on the case law of the International Court of Justice and the works of the International Law Commission.1040 In comparison to the Pictet Commentaries, the three already-​published new Commentaries consider, above all, state practice, other international law treaties, customary international law and academic works. Every interpretation generally relies on a variety of references. In cases of diverging views, the new Commentaries offer alternatives.1041 The interpretations are related to the means of interpretation stipulated in Articles 31 to 33 vclt.1042 In terms of content, the new Commentaries dedicate considerably more attention to non-​international armed conflicts than the Pictet Commentaries.1043 It is striking that the new Commentaries contain a few interpretations that had previously been advocated by the icrc, but which, in some cases, had been met with broad rejection in academia and practice. The Commentaries’ interpretation that Common Article 1 comprises far-​reaching obligations of states to ensure compliance with the Conventions in international and non-​international armed conflicts, in particular a positive obligation to ensure respect for the Conventions by others, including states as well as non-​state actors, is a case in point.1044 Before the Commentaries’ publications, this interpretation was elaborated upon by different members of the icrc’s legal division in academic contributions,1045 and used as a basis for the icrc’s 1 038 icrc, Commentary on the First Geneva Convention, Acknowledgements. 1039 For further information on the writing procedure and the review process, see e.g. Cameron and others, ‘The updated Commentary on the First Geneva Convention’, 1210–​2; Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’. 1040 icrc, Commentary on the First Geneva Convention, paras. 16–​52. 1041 Ibid, paras. 4–​5. But see S. Watts, ‘The Updated First Geneva Convention Commentary, dod’s Law of War Manual, and a More Perfect Law of War: Part ii’, Just Security, 29 July 2016 (who criticises different approaches in case of ambiguities). 1042 icrc, Commentary on the First Geneva Convention, paras. 16–​50. 1043 See also Fazal, Wars of Law, p. 36. 1044 Cameron and others, ‘The updated Commentary on the First Geneva Convention’, 1215–​6. 1045 K. Dörmann and J. Serralvo, ‘Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations’ (2014) 96(895/​896) irrc 707–​36; R. Geiss, ‘Common Article 1 of the Geneva Conventions: scope and content of the obligation to “ensure respect” –​“narrow but deep” or “wide and shallow”?’, in H. Krieger (ed.), Inducing Compliance with International Humanitarian Law (cup, 2015).

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agendas at International Conferences of the Red Cross and Red Crescent.1046 However, in academia, doubts were expressed as to whether Common Article 1 contains any such obligations at all.1047 In addition, the icrc’s agenda to strengthening compliance in ihl was pushed back by states at the 31st and 32nd International Conferences of the Red Cross and Red Crescent.1048 In general, however, the Commentaries are more concerned with order and stability than with new impulses. The Commentaries formulate most interpretations very carefully and try to bring together the various opinions in practice and academia. To clarify the new Commentaries’ authority for the determination of rules of ihl, the next three sections examine the discussions of the new Commentaries in academia that evolved shortly after the new Commentaries were published. It also considers the reliance upon the new Commentaries’ interpretations by international courts and tribunals and in state practice. Do the new Commentaries experience a similar acceptance to their predecessors? 5.1 Mostly Positive Reactions in Academia The first reactions to the new Commentaries took the form of posts on public international law blogs.1049 These posts, as well as the first journal articles on the new Commentaries, mostly dealt with (the correctness of) individual 1046 See e.g. 32nd International Conference of the Red Cross and Red Crescent, International humanitarian law and the challenges of contemporary armed conflicts, Report prepared by the icrc, 32ic/​15/​11, October 2015, pp. 26, 54–​5. 1047 See e.g. C. Focarelli, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?’ (2010) 21(1) ejil 125–​71; F. Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’ (1999) 2 yihl 3–​61. 1048 31st International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening legal protection for victims of armed conflicts and Resolution 2: Strengthening legal protection for victims of armed conflicts, Geneva, 28 November-​1 December 2011, reprinted in ‘Resolutions’ (2012) 94(885) irrc 355–​415 at 379–​81; icrc, ‘No agreement by States on mechanism to strengthen compliance with rules of war’, 10 December 2015 accessed 31 August 2023. 1049 The icrc co-​organised blogs series with contributions on the icrc’s blogs ‘Intercross’ and ‘Humanitarian Law & Policy’, cf. J. Dorsey, ‘Introducing the First Multi-​Blog Series on the Updated Geneva Conventions Commentaries’, Opinio Juris, 22 June 2016. In addition, icrc lawyers contributed posts to the blog series, see e.g. J.-​M. Henckaerts, ‘Joint series: Locating the Geneva Conventions Commentaries in the international legal landscape: Episode i, Part I’, Humanitarian Law & Policy, 29 June 2016; K. Thynne, ‘gciii Commentary Symposium: “Preparations Have Been Made in Advance”–​g ciii and the Obligation to Respect and Ensure Respect by Preparing for Retaining pows’, Opinio Juris, 27 January 2021.

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interpretations,1050 the application of interpretations to current issues in ihl,1051 and contemporary armed conflicts,1052 or the formal status of the new Commentaries.1053 In addition, the new Commentaries have immediately been cited in academic outputs, such as The Newport Manual on the Law of Naval Warfare.1054 Only few reactions expressed a generalised criticism of the underlying methodology. For instance, Sean Watts called on the icrc for a more explicit explanation of the Commentaries’ underlying methodology when observing the use of a ‘variance between doctrine and practice’.1055 He criticised that state practice is occasionally not correctly, or is contradictorily cited;1056 or overthrown by academic works.1057 Watts further negatively evaluated the quality of some of the academic works used1058 and that frequently, interpretations are based (solely) on the icrc’s own publications and studies.1059 Other criticism of the methodology focused on transparency,1060 the Commentaries’ approach to solving ambiguities in favour of humanity

1050 See e.g. R. Pedrozo, ‘Duty to Render Assistance to Mariners in Distress During Armed Conflict at Sear: A U.S. Perspective’ (2018) 94 ils 102–​26; M. A. Newton, ‘Contorting Common Article 3: Reflections on the Revised icrc Commentary’ (2017) 45(3) Georgia Journal of International and Comparative Law 513–​27; G. Corn and A. Culliver, ‘Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral Risk’ (2017) 45(3) Georgia Journal of International and Comparative Law 445–​73 at 452–​9 and 464–​ 73; W. Heintschel von Heinegg, ‘Belligerent Obligations under Article 18(1) of the Second Geneva Convention: The Impact of Sovereign Immunity, Booty of War, and the Obligation to Respect and Protect War Graves’ (2018) 94 ils 127–​39; W. Haiping, ‘The Updated Commentary on the Third Geneva Convention of 1949’ (2021) 20(4) Chinese Journal of International Law 831–​8. 1051 See e.g. A. Bellal, ‘icrc Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of ihl’, ejil: Talk!, 5 October 2017; R. Goodman, ‘Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community)’, Just Security, 4 October 2017. 1052 See e.g. A. A. Haque, ‘The United States is at War with Syria (according to the icrc’s New Geneva Convention Commentary)’, ejil: Talk!, 8 April 2016. 1053 See e.g. Murphy, ‘Episode i, Part ii’. 1054 Kraska James and others, ‘The Newport Manual on the Law of Naval Warfare’ (2023) 103 ils. 1055 S. Watts, ‘The Updated First Geneva Convention Commentary, dod’s Law of War Manual, and a More Perfect Law of War: Part iii’, Just Security, 16 September 2016. 1056 Ibid. 1057 Watts, ‘The Updated First Geneva Convention Commentary: Part I’. 1058 Ibid. 1059 Ibid. Watts repeated and deepened his criticism in a later blog post, see S. Watts, ‘Interpretation in the Updated gciii Commentary’, Articles of War, 15 December 2020. 1060 Heller, ‘Episode i, Part iii’.

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to the detriment of operational freedom,1061 the scarce application of the Vienna Convention on the Law of Treaties’ means of interpretation1062 or how the icrc justifies changes in interpretation when compared to the first commentaries.1063 Overall, the reactions to the new Commentaries in academia were positive. The criticism of the Study and the Guidance, particularly regarding the underlying methodology and expert process, has not been repeated to the same extent for the new Commentaries. Sean Murphy considered that the new Commentaries may be one of the first things ‘off the shelf’ (now off the Internet!) for practitioners in the field, when seeking to understand and uphold the complex web of rules that comprise international humanitarian law.1064 However, as was already observed for the Study and for the Guidance, some academics pointed out that the new Commentaries are not official or binding.1065 In addition to the explicit reactions, it could be observed that the new Commentaries’ interpretations triggered and enriched debates on current issues in ihl, such as the classification of armed conflicts in cases of interventions by third states to fight against non-​state organised armed groups1066 or

1061 Watts, ‘The Updated First Geneva Convention Commentary: Part ii’; Watts, ‘The Updated First Geneva Convention Commentary: Part iii’. 1062 M. W. Meier, ‘The Updated gciii Commentary: A Flawed Methodology?’, Articles of War, 3 February 2021. 1063 D. Akande, ‘Changes in Treaty Interpretation: The icrc’s Updated Commentaries to the Geneva Conventions’, ejil: Talk!, 14 August 2023. 1064 Murphy, ‘Episode i, Part ii’. 1065 Haiping, ‘The Updated Commentary on the Third Geneva Convention of 1949’, p. 838; V. Robson, ‘The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions’ (2020) 25(1) Journal of Conflict & Security Law 101–​15 at 114; E. Jensen and C. Sharp, ‘Non-​State Commentaries: Law-​Making or Law-​ Suggesting?’, Articles of War, 8 April 2021. 1066 See e.g. the criticism of the Commentaries’ interpretation of Common Article 2 by T. D. Gill, ‘Classifying the Conflict in Syria’ (2016) 92 ils 353–​80 at 372–​3 (‘the position taken by the icrc cannot be ignored’); Watts, ‘The Updated First Geneva Convention Commentary: Part I’; K. Watkin, ‘The icrc Updated Commentaries: Reconciling Form and Substance: Part I’, Just Security, 24 August 2016; K. Watkin, ‘The icrc Updated Commentaries: Reconciling Form and Substance: Part ii’, Just Security, 30 August 2016; and the reply by A. A. Haque, ‘Between the Law of Force and the Law of Armed Conflict’, Just Security, 13 October 2016.

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the scope of Common Article 1, in particular with regard to the obligation to ‘ensure respect’ for the Geneva Conventions.1067 Immediate Consideration in the Jurisprudence of International Courts and Tribunals When the first new Commentary was published in March 2016,1068 the Special Court for Sierra Leone and the ictr were already closed and the icty had only five more cases to decide. Likewise, the International Criminal Court has not announced many decisions since March 2016. Nevertheless, the new Commentary on gc i was referred to in a judgment of the icty in the table of other authorities1069 and taken into account in the legal argumentation in decisions of the International Criminal Court. In Ntaganda, when discussing the question of whether members of the same armed force are per se excluded as potential victims of the war crimes of rape and sexual slavery under Article 8 (2) (b) (xxii) and (e) (vi) Rome Statute, the Trial Chamber considered it ‘noteworthy’ that the icrc addresses this question in its new Commentary to gc i in relation to Common Article 3. The Trial Chamber quoted from the Commentary:

5.2

The fact that … the abuse [is] committed by their own Party should not be a ground to deny such persons the protection of common Article 3. This is supported by the fundamental character of common Article 3 which has been recognized as a ‘minimum yardstick’ in all armed conflicts and as a reflection of ‘elementary considerations of humanity’.1070

1067 See e.g. the criticism of the Commentaries’ interpretation of Common Article 1 by Robson, ‘The Common Approach to Article 1’; M. N. Schmitt and S. Watts, ‘Common Article 1 and the Duty to “Ensure Respect”’ (2020) 96 ils 674–​706; M. Zwanenburg, ‘The “External Element” of the Obligation to Ensure Respect for the Geneva Conventions: A Matter of Treaty Interpretation’ (2021) 97 ils 621–​51; and the reply by M. Sassòli, ‘Is the Time for Law of War Treaty Commentaries Over?’, Articles of War, 26 February 2021. See also the positive review by E. Stubbins Bates, ‘Geneva Convention iii Commentary: Unpacking the Potential of “Ensure Respect” in Common Article 1’, Just Security, 30 October 2020. 1068 icrc, ‘icrc launches new guidance bolstering relevance of Geneva Conventions’, 21 March 2016 accessed 31 August 2023. 1069 icty, Prosecutor v Prlić et al. (Judgment) Case No it-​04-​74-​A (29 November 2017) G. Table of Other Authorities, 1. International legal instruments and commentaries. 1070 icc, Prosecutor v Ntaganda (Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) Case No icc-​01/​04-​02/​06-​1707 (4 January 2017) para. 50.

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After stating that this approach is consistent with the Pictet Commentaries and citing additional support for the interpretation that the scope of protection against sexual violence under ihl is not limited to only certain categories of persons,1071 the Trial Chamber concluded that members of the same armed force are not per se excluded as potential victims of the war crimes of rape and sexual slavery.1072 Ntaganda appealed against the Trial Chamber’s decision, claiming that the ‘established framework of international law’ introduces status requirements to the war crimes of rape and sexual slavery under Article 8 (2) (b) (xxii) and (e) (vi) Rome Statute excluding members of the same armed force as potential victims. When examining the ‘established framework of international law’,1073 the Appeals Chamber, inter alia, referred to the new Commentary on gc i to support its finding that the notion of grave breaches under Articles 50 gc i and 51 gc ii includes violations against the wounded, sick or shipwrecked committed by members of the same armed force.1074 Moreover, the Appeals Chamber emphasised that the Trial Chamber considered it ‘noteworthy’ that, according to the new Commentary, Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.1075 It rejected Ntaganda’s claim that the Trial Chamber erred by relying on the new Commentary, stating that, [w]‌hile it is correct that the references on which the commentary relies are limited and include a decision of the Pre-​Trial Chamber in this very case, and while the decision of the Trial Chamber of the [Special Court for Sierra Leone] reached a contrary finding, this, in and of itself, is not an indication that the icrc’s conclusion was incorrect. Notably, the Appeals Chamber finds the decision of the scsl Trial Chamber … to be unpersuasive.1076 Finally, the Appeals Chamber came to the conclusion that ihl does not contain a general exclusion of members of an armed group from protection against crimes committed by members of the same armed group and that the

1 071 Ibid, paras. 50–​3. 1072 Ibid, para. 54. 1073 icc, Prosecutor v Ntaganda (Judgment) Case No icc-​01/​04-​02/​06 oa5 (15 June 2017) paras. 56–​63. 1074 Ibid, para. 59 (fn. 126). 1075 Ibid, para. 61. 1076 Ibid.

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‘established framework of international law’ does not introduce status requirements to Article 8 (2) (b) (xxii) and (e) (vi) Rome Statute.1077 In Situation in the Islamic Republic of Afghanistan, the Appeals Chamber referred to the new Commentary on gc i when stating that the phrase ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’ in Common Article 3 does not restrict the Article’s application to the territory of the state in which the armed conflict occurs.1078 After explaining the purpose of Common Article 3 based on the interpretation of the new Commentary on gc i,1079 the Appeals Chamber quoted entire passages from the Commentary, according to which ‘an existing non-​international armed conflict may spill over from the territory of the State in which it began into the territory of a neighbouring State not party to the conflict’.1080 In Case of Saribekyan and Balyan v Azerbaijan, the European Court of Human Rights relied on the new Commentaries interpretation of Common Article 2 to determine the existence of an armed conflict between Azerbaijan and Armenia.1081 Although the few judgments in which the new Commentaries have been used do not allow any major conclusions to be drawn about their acceptance in international jurisprudence, it is striking that the Commentaries were taken into account immediately after publication. The references to the new Commentary on gc i by the International Criminal Court recalls the tradition of relying on the Pictet Commentaries and the ap Commentary. Yet, the new Commentaries have not been used as a reference point for assessing the legal situation tantamount to the Geneva Conventions and have not been referred, and interpreted as comparable, to treaties as observed for the Pictet Commentaries and the ap Commentary. 5.3 Rejection of the Interpretation of Common Article 1 in State Practice The first state reaction to the new Commentary on gc i was an indirect rejection from the US of the interpretation of Common Article 1 regarding the obligation to ensure compliance with ihl by cooperating actors. In a speech to

1 077 Ibid, paras. 63–​6. 1078 icc, Situation in the Islamic Republic of Afghanistan (Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan) Case No icc-​02/​17-​138 (5 March 2020), para. 73. 1079 Ibid, 74. 1080 Ibid, para. 75. 1081 ECtHR, Case of Saribekyan and Balyan v Azerbaijan, App. No 35746/​11, Judgment (7 September 2020), para. 38.

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the American Society of International Law, US State Department Legal Adviser Brian Egan noted: Some have argued that the obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires us to undertake such steps and more vis-​à-​vis not only our partners, but all States and non-​State actors engaged in armed conflict. Although we do not share this expansive interpretation of Common Article 1, as a matter of policy, we always seek to promote adherence to the law of armed conflict generally and encourage other States to do the same.1082 John Reid (Head of the Office of International Law at the Australian Commonwealth Attorney) noted appreciation that the new Commentary on gc i ‘provides some guidance’. However, he also was critical of the Commentary’s interpretations regarding Common Article 1, arguing that they ‘go beyond what is reasonably within a State’s power, and do not find support in State practice.’1083 Referring to the statement of US State Department Legal Adviser Brian Egan, he noted that the interpretation on the positive obligation to ensure respect of partners in joint operations does not take into account the fact that states involved in joint operations may implement the relevant obligations of ihl differently.1084 Moreover, pointing to the absence of state practice, Reid criticised the interpretation of the obligation to ensure respect by non-​state actors as lacking sufficient explanations for its application in practice and that it is not an essential element of the obligation contained in Common Article 1.1085 Likewise, Marten Zwanenburg (Legal Counsel at the ministry of Foreign Affairs of the Netherlands) rejected some of the Commentaries’ interpretations of Common Article 1. Among others, he rejected its application in non-​ international armed conflicts and the external dimension of the obligation to ensure respect of the Geneva Conventions.1086 Since Zwanenburg only wrote

1082 B. Egan, ‘International Law, Legal Diplomacy, and the Counter-​isil Campaign: Some Observations’ (2016) 92 ils 235–​48 at 245. 1083 J. Reid, ‘Ensuring respect: the role of State practice in interpreting the Geneva Conventions’, ila Reporter, 9 November 2016. 1084 Ibid. 1085 Ibid. 1086 M. Zwanenburg, ‘The obligation to “ensure respect” for ihl: the debate continues’, Intercross, 26 September 2017.

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in his personal capacity, his statement can only be taken as an indication of the Dutch state practice. However, the use of the new Commentaries in the new French military manual, published in 2022, implies that states (will) rely on the new Commentaries despite their opposition to the interpretation of Common Article 1.1087 The French military manual cites the new Commentaries on gc i and gc ii with regard to questions concerning Common Article 21088 and Common Article 3.1089 Additionally, the new Commentaries were referred to in national court decisions.1090 The Canadian Federal Court rejected the new Commentaries’ interpretation that Common Article 1 applies in non-​international armed conflicts by highlighting that ‘Canadian case law has determined that Article 1 does not impose any obligation in the context of non-​international armed conflicts.’1091 However, later, it cited the new Commentary on gc i in support of the interpretation that Common Article 1 does not oblige state parties to take any specific measure in response to a violation of ihl by another state, but that they are in principle free to choose between different possible measures to ensure respect.1092 The analysis of state practice shows that states deal with the new Commentaries and respond to an interpretation that is critical from their perspective. It is noticeable, however, that criticism of the new Commentaries was put forward only with regard to the interpretation of Common Article 1. Other 1087 In addition, see the State of Palestine’s reliance on the new Commentaries interpretations of Common Article 6/​6/​6/​7 in icc, Situation in the State of Palestine (The State of Palestine’s response to the Pre-​Trial Chamber’s Order requesting additional information) Case No icc-​01/​18–​135 (4 June 2020), paras. 18 and 29 (fn. 30), and Common Article 1 in icc, Situation in the State of Palestine (The State of Palestine’s observations in relation to the request for a ruling on the Court’s territorial jurisdiction in Palestine) Case No icc-​01/​ 18–​82 (16 March 2020), paras. 44 (fn. 57), 69 (fn. 96). 1088 Ministère des Armées de la République Française, Manuel de droit des operations militaires, pp. 81–​91 (fn. 172, 180, 182, 184–​5, 187 and 202–​3). 1089 Ibid, pp. 123 (fn. 329), 183 (fn. 648–​9), 189 (fn. 670). 1090 See e.g. Stockholm District Court, Prosecutor v Haisam Omar Sakhan (Judgment) Case No B 2259–​17 (31 Mai 2017) paras. 29 and 31 (relying on the Commentary regarding the fair trial requirement under Common Article 3); Daniel Turp v the Minister of Foreign Affairs (Judgment) Case No T-​462-​16, 2017 fc 84 (24 January 2017) paras. 70, 73; Special Jurisdiction for Peace, Case No. 01, Hostage-​taking and serious deprivation of liberty committed by the farc-​e p (26 January 2021), para. 718 (describing the new Commentary on gc ii as authoritative and relying on its interpretation of Common Article 3). 1091 Daniel Turp v the minister of Foreign Affairs (Judgment) Case No T-​462-​16, 2017 fc 84 (24 January 2017) para. 70. 1092 Ibid, para. 73.

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interpretations or the Commentaries’ methodology were not discussed. On the one hand, this indicates that the new Commentaries are taken very seriously by the executives and the judiciaries of states. On the other hand, the reactions to the interpretation of Common Article 1 imply that the icrc does not currently seem to be in a position to implement extensive interpretations in legal practice –​although there are very few of these in the new Commentaries, which suggests that the icrc is aware of its current position. The New Commentaries’ Marks of Authority 5.4 The first reactions to the new Commentaries in academia and legal practice1093 indicate that the new Commentaries are perceived as authorities on the determination of the content of rules of ihl and will become a standard reference on the interpretation of the Geneva Conventions and the Additional Protocols.1094 Since a relatively short period of time can be taken into account since the publications of the new Commentaries, this section only discusses the marks on which the authority of the new Commentaries possibly builds. Consequently, these observations are necessarily tentative. 5.4.1 Expertise The writing of the new Commentaries involves many icrc and external experts on ihl. The experts from the icrc staff guarantee expertise on the application of the Geneva Conventions and the Additional Protocols from the field. The external experts are well-​known international law scholars, who stand 1093 In addition to the use of the new Commentaries by international courts and tribunals and in state practice, the commentaries have also been used by UN bodies, in particular the UN Human Rights Council, see e.g. UN Human Rights Council, Ensuring accountability and justice for all violations of international law in the Occupied Palestinian Territory, including East Jerusalem Report of the United Nations High Commissioner for Human Rights, UN Doc a/​h rc/​46/​22 (15 February 2021), paras. 37–​9, 42; UN Human Rights Council, ‘There is nothing left for us’: starvation as a method of warfare in South Sudan, Conference room paper of the Commission on Human Rights in South Sudan, UN Doc. a/​h rc/​45/​c rp.3 (5 October 2020), para. 34 (fn. 30); UN Human Rights Council, Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc a/​h rc/​40/​c rp.2 (18. March 2019), para. 98 (fn. 121); UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. a/​h rc/​37/​72 (1 February 2018), para. 13 (fn. 5). 1094 Cf. Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 193 (‘It is reasonable to expect that the forthcoming revised Commentaries will enjoy similarly influential and revered status as de facto “official” expositions on the ambiguities of the Conventions and their Protocols. At present, no State or collection of like-​minded State legal advisors appears resolved or resourced to match this icrc effort’).

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for academic expertise and academic freedom. Therefore, the Commentaries’ authority probably builds on expertise. In fact, the consideration of the new Commentaries’ interpretation on Common Article 3 by the International Criminal Court, as well as the recourse to the Commentaries in discussions of current issues in ihl and evaluations of situations in armed conflicts shortly after its publication support this assumption.1095 What role do the new Commentaries play in terms of expertise compared to competing interpretations on the Geneva Conventions and the Additional Protocols? In comparison to the Pictet Commentaries and the ap Commentary, the new Commentaries take into account developments in warfare, international law, state practice and academia since the adoption of the Geneva Conventions and the Additional Protocols, respectively. Their designation as an ‘update’ of the Pictet Commentaries and the ap Commentary and as a ‘second edition’ underline this distinction and emphasise that the ‘first editions’ are outdated. However, the Pictet Commentaries and the ap Commentary may remain relevant, especially with regard to the genesis of the Geneva Conventions and the Additional Protocols.1096 In comparison to most academic works, the new Commentaries cover all articles of the Geneva Conventions and the Additional Protocols,1097 are freely accessible online1098 and will be published in Arabic, Chinese, French, Russian and Spanish,1099 which makes their consideration much more likely and far-​ reaching than standard academic outputs. The emphasis on the inclusion of knowledge of the experts from the icrc in the application of ihl in the field implies a practical relevance to the new Commentaries’ interpretations that academic works usually may not provide.1100 In addition, the icrc stresses that the Commentaries take into account state practice from the icrc archives, which is not publicly accessible, to assess the application and interpretation of the Conventions and Protocols since their adoption.1101 1 095 See in this Chapter, at 5.1 and 5.2. 1096 See in this Chapter, at 1.3.1 and 2.3.1. 1097 There exists no academic article-​to-​article commentary on the Geneva Conventions, see the discussion in this Chapter, at 1.3.1. 1098 This was, e.g., positively emphasised by Milanovic, ‘New icrc Commentary to the First Geneva Convention’. 1099 Cameron and others, ‘The updated Commentary on the First Geneva Convention’, 1210. 1100 Cf. the introduction of the new Commentary on gc i by T. Rodenhäuser, ‘Ein Meilenstein der Verbreitungsarbeit des Humanitären Völkerrechts: Das Internationale Komitee vom Roten Kreuz veröffentlicht eine Neuauflage seines Kommentars zum Ersten Genfer Abkommen von 1949’ (2016) 29(2) Journal of International Law of Peace and Armed Conflict 57–​62 at 62. 1101 icrc, Commentary on the First Geneva Convention, para. 10.

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5.4.2 Institutional Authority of the icrc The icrc’s approach to the institutional linkage of the new Commentaries differs from that of the first edition, as well as other previous interpretations and law-​ascertainments of the icrc. The icrc commissioned the writing of the Commentaries and declared them to be the authors’ personal work. Furthermore, it organised the whole writing process, which is directed by an icrc project team, and published the new Commentaries as ‘icrc Commentaries’.1102 The new Commentaries reflect the icrc’s legal opinion.1103 Though the icrc emphasises that the Commentaries are the result of a collaborative process with external experts1104 and discloses the authors of the interpretations, the icrc’s recommendation for citation does not include the authors’ names.1105 Accordingly, in legal practice and academia, the new Commentaries are cited as ‘icrc Commentaries’ without a reference to the authors. In this regard, the new Commentaries benefit from the authority of the icrc as observed for previous publications of the icrc.1106 For instance, Sean Murphy opined that the new Commentaries are in accord with the icrc’s mandate in Article 5 (2) (g) Statutes of the Movement.1107 In addition, the new Commentaries are related to the success of previous publications.1108 However, due to this (closer) connection to the icrc, the new Commentaries are also linked to the criticism of the Study and the Guidance, as well as to the pushbacks on the icrc’s propositions, and states’ reaffirmations of their primary role in the development of ihl at the 31st and 32nd International Conferences of the Red Cross and Red Crescent.1109 5.4.3 Underlying Process and Form The icrc emphasises that the writing of the Commentaries is based on its role as guardian and promoter of ihl, as formally recognised by states under

1102 See e.g. Maurer, ‘Foreword’. Somewhat ambiguously, elsewhere it is noted that the Commentaries are far from being an exclusive icrc product, see e.g. Henckaerts, ‘Locating the Geneva Conventions Commentaries in the international legal landscape’. 1103 Cameron and others, ‘The updated Commentary on the First Geneva Convention’, 1212; icrc, Commentary on the First Geneva Convention, paras. 4–​5. 1104 Maurer, ‘Foreword’. 1105 See , and accessed 31 August 2023. 1106 See in this Chapter, at 1.3.2, 2.3.2, 3.4.2, 4.4.2. 1107 Murphy, ‘Episode i, Part ii’. 1108 See e.g. Milanovic, ‘New icrc Commentary to the First Geneva Convention’. 1109 See e.g. Murphy, ‘Episode i, Part ii’.

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the Geneva Conventions and the Statutes of the Movement,1110 as well as the icrc’s more than 150 years of experience in the field.1111 For the user of the Commentaries, this can appear as an official authorisation of the icrc to write the Commentaries and thus give more weight to the Commentaries’ interpretations.1112 Regarding the underlying expert process, the icrc conducts an elaborate review process.1113 This review process, as well as the authors of the Commentaries’ interpretations, comprise external experts from academia and legal practice, including legal advisors from states, Human Rights Watch, the United Nations, the International Federation of Red Cross and Red Crescent Societies, and National Red Cross and Red Crescent societies.1114 The involvement of states’ legal advisors1115 and National Red Cross and Red Crescent societies, which are specially recognised institutions in states’ domestic laws and undertake tasks delegated by their national states,1116 may endorse states’ acceptance of the new Commentaries. Likewise, the participation of several military lawyers1117 may promote the acceptance of states and the community of military lawyers. In this context, for the releases of the first three new Commentaries, the icrc organised events with speeches of (military) experts and states’ legal advisors, which demonstrated unity and their acceptance of the Commentaries.1118 1 110 Maurer, ‘Foreword’; icrc, Commentary on the First Geneva Convention, para. 8. 1111 Henckaerts, ‘Locating the Geneva Conventions Commentaries in the international legal landscape’. 1112 For a discussion of the icrc’s legal role under the Geneva Conventions and the Statutes, see Chapter 1, at 2. 1113 In addition, icrc discusses the Commentaries with experts from different fields in the Bruges Colloquium, see M. Orkin, ‘In Bruges: the enduring relevance of ihl and the updated Commentaries’, Humanitarian Law & Policy, 23 February 2022. 1114 icrc, Commentary on the First Geneva Convention, Acknowledgements. 1115 The states’ legal advisors, however, participated in their personal capacity and, in general, there is no formal consultation process with states as part of the drafting process, see Cameron and others, ‘The updated Commentary on the First Geneva Convention’, 1212. 1116 See e.g. the German regulation of the German Red Cross‘ role and tasks in §§ 1 and 2 (1)-​(3) Gesetz über das Deutsche Rote Kreuz und andere freiwillige Hilfsgesellschaften im Sinne der Genfer Rotkreuz-​Abkommen, Bundesgesetzblatt (Federal Law Gazette) I, p. 2346. For a general overview of the national societies’ rights and obligations, see H. Spieker, ‘Rights and Obligations of Foreign National Red Cross and Red Crescent Societies’, in D. Fleck (ed.), The Handbook of the Law of Visiting Forces, 2nd edn. (oup, 2018) 558–​74. 1117 E.g. Jann K. Kleffner, Geoffrey S. Corn, Sean Watts, Bruce Oswald, Wolff Heintschel von Heinegg, or Gary D. Solis. 1118 See e.g. the announcement for the presentation of the new Commentary on gc ii: icrc, ‘Updated Commentary on the Second Geneva Convention’

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Accordingly, the underlying process was hardly criticised. Only Kevin Heller pointed out that the Editorial Committee, the icrc Project Team, and the Reading Committee do not include experts from the Global South, who are only represented in the peer-​review group.1119 Heller also emphasised that the experts involved, as well as the icrc, have political and legal commitments that may influence their interpretations of ihl and called international legal scholars to question the Commentaries when they believe that the interpretations are wrong.1120 Regarding the Commentaries’ form, as explained above for the Pictet Commentaries,1121 the commentary form can play a role in authority of the new Commentaries. In addition, it was positively emphasised that the new Commentaries are freely accessible online and easy to use.1122 The publication of the new Commentaries with cup indicates that they conform with high academic standards. 5.4.4 Methodology The new Commentaries contain an introduction to the applied methodology of treaty interpretation, which is strictly oriented on the means of interpretation contained in Articles 31 to 33 vclt and refers to the case law of the International Court of Justice and the works of the International Law Commission.1123 Georg Nolte (then Special Rapporteur of the International Law Commission on the topic of subsequent agreements and subsequent practice in the interpretation of treaties) participated in the review procedure for the introduction, i.e. demonstrated his agreement with the underlying methodology.1124 This approach probably prevents criticism of the Commentaries in terms of methodology, in particular by states (as could be observed for the Study)1125 since the Commentaries’ interpretations frequently built on subsequent practice.1126 Indeed, little criticism has been raised concerning the methodological approach.

accessed 31 August 2023. 1119 Heller, ‘Episode i, Part iii’. 1120 Ibid. 1121 See in this Chapter, at 1.3.4. 1122 Milanovic, ‘New icrc Commentary to the First Geneva Convention’. 1123 icrc, Commentary on the First Geneva Convention, paras. 16–​50. 1124 Ibid, Acknowledgements. 1125 See in this Chapter, at 3.1.1 and 3.3.1. 1126 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 160.

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5.4.5 Tradition By announcing the new Commentaries as an update of the ‘first edition’1127 or ‘original commentaries’1128 and publishing them on the icrc website side-​ by-​side with the Pictet Commentaries and the ap Commentary, it is possible that the new Commentaries will build upon the tradition of the Pictet Commentaries and the ap Commentary, as well as the authorship of Jean Pictet. Indeed, the International Criminal Court cited the new Commentary on gc i as ‘second edition’.1129 In academia, the new Commentaries are introduced as the successors of the Pictet Commentaries.1130 However, the icrc does not uniformly describe the new Commentaries as ‘second edition’. While the designation is included in the way of citation as recommended on the icrc website, the printed version by cup does not include this designation. A uniform publication of the new Commentaries as ‘second edition’ might have been more promising in this respect. 5.5 Conclusion: No Special Status for the New Commentaries Yet The authority of the new Commentaries is mainly based on expertise, the icrc’s authority, the underlying expert process, the methodology and the form of the Commentaries. Probably, they will become, as the icrc would like, ‘a leading interpretative compass’1131 and build on the tradition of the predecessor commentaries.1132 For ihl it can be concluded that the new Commentaries strengthen the Geneva Conventions and Additional Protocols as the legal basis for conduct in armed conflicts by underlining their relevance and bringing together divergent viewpoints from academia and legal practice under their rules. The analysis of the scarce legal practice on the new Commentaries so far implies that they do not yet enjoy special status like the first edition of the Commentaries does. Moreover, the three published Commentaries contain very few extensive interpretations, that cannot be traced back to the will of states. Presumably, 1 127 Maurer, ‘Foreword’. 1128 Henckaerts, ‘Bringing the Commentaries into the twenty-​first century’, 1553. 1129 icc, Prosecutor v Ntaganda (Judgment) Case No icc-​01/​04-​02/​06 oa5 (15 June 2017) para. 59 (fn. 126). 1130 See e.g. Murphy, ‘Episode i, Part ii’ (assuming that the use of the new Commentaries will develop into tradition). 1131 Henckaerts, ‘Locating the Geneva Conventions Commentaries in the international legal landscape’. 1132 Note that Sean Watts doubts the value of the new Commentaries for ‘States’ law of war practitioners’ when compared to its predecessors. Watts, ‘Interpretation in the Updated gciii Commentary’.

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this is because the icrc fears that these could jeopardise the acceptance of the new Commentaries as a whole, or even other efforts of the icrc, for instance, in the frame of the International Conference of the Red Cross and Red Crescent. In this respect, the role of the icrc for ihl seems to have changed since the publication of the first Commentaries and arguably also the Study. The criticism of the interpretation of Common Article 1 in state practice indicates that the few extensive interpretations do not find their way into legal practice. This conclusion excludes a reflection on the extent to which the underlying methodology influences the structural rules of international law, since this is the subject of Chapter 3. 6

Assessment: Changes in the Marks and Different Degrees of Authority

The analysis of the de facto authority of the Pictet Commentaries, the ap Commentary, the Study, the Guidance and the new Commentaries reveals that: First, the authority between these publications varies; and, second, the authority of each individual output is subject to changes over time. While the authority of the Pictet Commentaries and the ap Commentary has consistently been high and hardly questioned for a long period of time, the authority of the Study and the Guidance was weaker at the time of their publication due to criticism from states and academia. The new Commentaries seem to be spared from such criticism. They already seem to enjoy authority in legal practice and academia. After initial criticism, the Study’s authority has strengthened over time and today, the Study stands in line with the Commentaries. In contrast, the Guidance’s authority is still rather limited. After the publication of the new Commentaries as ‘second edition’, it remains to be seen whether the ‘first edition’, which was already considered outdated, will lose its authority. With regard to the marks of authority, it is striking that the expertise and the icrc’s authority are consistently important in all five publications. However, the authority of the Study, the Guidance and the new Commentaries is based on the involvement of numerous experts not only from ihl, but from the various fields of international law while the authorship of Jean Pictet, i.e. a single expert, constituted a decisive mark of the Pictet Commentaries’ authority and, with some limitations, the ap Commentary’s authority. Moreover, the form plays a major role for the authority of the Study, the Guidance and the new Commentaries, but not for the Pictet Commentaries’ authority and only to a limited extent for the ap Commentary’s authority. Likewise, the underlying methodology is particularly relevant for the Study’s, the Guidance’s

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and the new Commentaries’ authority. Overall, a professionalisation can be observed, which, inter alia, affects the language used. Whereas the Pictet Commentaries used emotional language –​in particular, when emphasising humanitarian concerns –​the ap Commentary, the Study, the Guidance and the new Commentaries used a functional language. Emotions only appear in the background of these publications.1133 In this regard, the tradition of making recourse to the interpretations of the Pictet Commentaries and the ap Commentary, which had developed over time, seems to compensate for non-​compliance with standards that evolved or further developed after the Commentaries’ publications.1134 What are the reasons for those changes in the marks and different degrees of authority? The next sections address this question. 6.1 Proximity to Legal Sources One reason for the changes in the marks and different degrees of authority could be that the publications are related to different legal sources or have a distinct proximity to these legal sources. The Commentaries are closely linked to the rules of the Geneva Conventions and the Additional Protocols, which manifest the consensus of the state parties and whose binding character is uncontroversial.1135 The fact that the icrc prepared the Geneva Conventions and Additional Protocols strengthens this link. The Commentaries benefit from the authority of these legal texts as the descriptions of ‘accompanying’ or ‘official’ Commentaries illustrate.1136 This is all the more evident for the Pictet Commentaries and the ap Commentary, whose authors participated in the preparatory conferences to the Geneva Conventions and the Additional Protocols, respectively. In addition, the Commentaries claim validity only for the contracting parties. This is particularly crucial with regard to the ap

1133 E.g. emotions were used for the launch of the new Commentaries on gc i and gc ii, see and all accessed 31 August 2023. 1134 E.g. it is doubtful whether the Commentaries’ interpretations are (still) in accordance with Articles 31 to 32 vclt. Cf. also B. Baade, L. Mührel and A. O. Petrov, ‘Concluding Observations: how International Humanitarian Law is Shaped to Meet the Challenges Arising from Areas of Limited Statehood –​Theoretical Problems in Practice’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos, 2018), p. 237; Jansen, The making of legal authority, pp. 140–​1. 1135 For the stabilising function of the legal text for a commentary (and vice versa), see Kästle-​ Lamparter, Welt der Kommentare, pp. 327–​9. 1136 See in this Chapter, e.g., at 1.1.4 and 2.1.6.

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Commentary since the Additional Protocols are not universally ratified. The ap Commentary does not address non-​parties to the Protocols, among others, the US and Israel, who object to the customary character of some of the rules of the Additional Protocols. These states have seen no reason to react to the ap Commentary’s interpretations. In general, Commentaries are perceived to only ‘comment’ on the law and not to shape it. Although clarifications of the legal status of the Pictet Commentaries and the ap Commentary indicate a certain awareness of the Commentaries’ influence on the meaning of the Geneva Conventions and Additional Protocols;1137 these clarifications do not directly address the Commentaries’ effect on the law, let alone an intent to shape the law, but only address the users of the Commentaries. In contrast, the Study identifies ‘Rules’ of customary ihl claiming universal validity. The identified Rules are based on a much weaker foundation. For customary international law, there is no express state consent and the ‘correct’ methodology for identifying rules of customary international law has been subject to extensive debates.1138 As James Crawford states: ‘The problem with establishing customary international law is that it seems impossible.’1139 These controversies about the ‘correct’ methodology paved the way for the fundamental criticism of the Study by states objecting to the customary character of certain Rules and opened the debates in academia for non-​i hl specialists.1140 Likewise, the Guidance builds on a rule found in the (not-​universally-​ratified) Additional Protocols (Article 51 (3) ap i and Article 13 (3) ap ii) and claimed to have customary character, which has been questioned by states not parties to the Additional Protocols.1141 Both the Study and the Guidance were alleged to intend to shape the law.1142 The Study’s and the Guidance’s different degrees of authority in terms of their relation and proximity to legal sources may be explained, firstly, by the

1137 Cf. e.g. icty, Prosecutor v Milošević (Decision on monitoring for judgment of acquittal) Case No it-​02-​54-​T (16.6.2004) para. 19 (‘the icrc Commentary is nothing more than what it purports to be, i.e., a commentary, and only has persuasive value’); repeated in icty, Prosecutor v Boškoski and Tarčulovski (Judgment) Case No it-​04-​82-​T (10.7.2008) para. 176 (fn. 711). 1138 See e.g. Kammerhofer, ‘Uncertainty in the Formal Sources of International Law’, 536; Kolb, ‘Selected problems in the theory of customary international law’. See also Koroma, ‘Foreword’. 1139 J. Crawford, Chance, Order, Change: The Course of International Law (brill, 2014), p. 57. 1140 For the criticism of the Study’s underlying methodology, see in this Chapter, at 3.1.1 and 3.3.1. 1141 Cf. Crawford, Identifying the Enemy, p. 86. 1142 See in this Chapter at 3.1 and 4.1.6.

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Study being based on extensive evidence of longstanding state practice and opinio juris. Secondly, the customary character of most of the identified Rules is principally accepted despite the criticism of the underlying methodology. Thirdly, often the Rules are equally or similarly formulated to their treaty counterparts. This brings a certain proximity to the source of treaty-​based ihl. Fourthly, the identified Rules are in the foreground, while the commentary on the Rules has only an explanatory character and does not subsume controversial meaning to the Rules. The Study resembles a mere restatement of existing law. Lastly, the Study is constantly updated and hence cannot easily be criticised in the light of new developments in legal practice. In contrast, the Guidance was prepared and released at a time when states were developing practices of targeted killings in their fight against terrorism, for which the application of even basic rules of ihl were contested.1143 Consequently, the Guidance is based on a much less established state practice. Thus, the interpretation of such state practice was contestable and controversial.1144 In addition, the Guidance does not build on past practices by the icrc, but partly contrasts with the interpretations of the ap Commentary and Study on direct participation in hostilities.1145 The Guidance is not subject to an updating process, which could support its findings against repeated criticism. Moreover, the Guidance provides only recommendations, not rules.1146 It does not identify customary ihl. Rather, it foregrounds extensive interpretations of vague rules and principles of customary ihl.1147 Compared to the Study, the Guidance thus has a significantly weaker proximity to the sources of law.

1143 Cf. Petrov, Expert Laws of Wars, p. 45; Cryer, ‘See a Little Light’, pp. 113–​4. For an overview of the targeted killing practices of Israel, Russia and the US, see Crawford, Identifying the Enemy, pp. 98–​104. 1144 For discussions on the meaning of the state practice on which the Guidance is based, see in this Chapter, at 4.1. Cf. also Crawford, Identifying the Enemy, pp. 86 (‘Determining the scope of dph, in line with existing law, was potentially always a contentious exercise, especially given the paucity of customary international law’). 1145 See in this context I. Venzke, ‘Semantic Authority, Legal Change and the Dynamics of International Law’, in H. P. Olsen and P. Capps (eds.), Legal authority beyond the state (cup, 2018), p. 123 (‘The dynamic expectations that underpin any semantic authority … hinge on past practices. How well does a claim about the law in the present fit with past claims?’). 1146 On the role of the form, cf. e.g. Jansen, The making of legal authority, pp. 106–​8 (who highlights that German national courts usually rely on commentaries as doctrinal authorities and only exceptionally cite monographs). 1147 E.g. with regard to the Guidance’s extensive interpretation of the principle of military necessity for Recommendation ix, see Steiger, ‘Enforcing international humanitarian law’, pp. 290–​1. See also Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 185 (highlighting that the range of activities that constitute

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6.2 Increase and Diversification of the Expert Community A second reason accounting for the changes in the marks and different degrees of authority could be explained by the fact that ihl has come to the centre of international legal discourse since the end of the Cold War1148 and in particular since the 9/​11 attacks.1149 Concomitantly, the community of international humanitarian law scholars has grown significantly.1150 This growth has been accompanied by a range of different opinions and channels of academic discourse.1151 This can be seen by, for instance, the fact that the quantity of journals that deal with ihl has substantially increased since the 1990s.1152 Likewise, over the last two decades, several first editions of ihl textbooks have been published,1153 and numerous blogs dealing with issues of ihl have been

direct participation in hostilities and the temporal aspect were already unclear to many parties to the Additional Protocols at the time of adoption). 1148 D. Schindler, ‘International Humanitarian Law: Its Remarkable Development and its Persistent Violation 1’, in M. N. Schmitt and W. Heintschel von Heinegg (eds.), The Development and Principles of International Humanitarian Law (Routledge, 2012). 1149 Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 248–​9. 1150 For an analysis of the composition of the ihl community, see A. Moorehead, ‘Who Gets to Make International Humanitarian Law in the Future: A Pluralist Vision’, in M. C. Waxman and T. W. Oakley (eds.) The Future of Armed Conflict (oup, 2022). 1151 Cf. Sassòli, International Humanitarian Law, paras. 4.78–​4.80; Dinstein, ‘Keynote Address’, 702 (‘I often feel nostalgia for that long-​gone era when loac was left alone by non-​ specialists. At that remote time, in the civil society, only the [icrc] was focusing on this subject’). On the growth of legal scholarship in general, see Stahn and de Brabandere, ‘The Future of International Legal Scholarship’, 5–​6. 1152 E.g., the Journal of International Law of Peace and Armed Conflict was founded in 1988; the International Law and Armed Conflict Commentary, predecessor of Journal of Armed Conflict (1996–​1999) and the jcsl (since 2010), in 1994; the Yearbook of International Humanitarian Law in 1998; the Journal of International Humanitarian Legal Studies in 2010; the Harvard National Security Journal in 2010; the Asia-​Pacific Yearbook of International Humanitarian Law (2005–​2017), predecessor of the Asia-​Pacific Journal on International Humanitarian Law (since 2019). 1153 See e.g. for textbooks in English G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (cup, 2010); Thürer, International Humanitarian Law; Blank and Noone, International Law and Armed Conflict; Crowe and Weston-​ Scheuber, Principles of International Humanitarian Law; R. Kolb, Advanced Introduction to International Humanitarian Law (Edward Elgar Publishing, 2014); Crawford and Pert, International Humanitarian Law; U. C. Jha and K. Ratnabali, The Law of Armed Conflict: An Introduction (Vij Books India Pty Ltd, 2017); N. K. Tsagourias and A. Morrison, International Humanitarian Law: Cases, Materials and Commentary (cup, 2018) and most recently Sassòli, International Humanitarian Law. The first ihl textbook in German language was published in 2007, see Hans-​Peter Gasser and Daniel Thürer, Humanitäres Völkerrecht: Eine Einführung, 1st edn. (Nomos and Schulthess, 2007).

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founded.1154 Previously, the icrc dominated these channels of academic discourse on ihl.1155 In this context, the revolution of international law through information and communication technology in the last two decades, which allows faster responses to the icrc’s outputs and a wider dissemination of these responses, should also be taken into account.1156 Heintschel von Heinegg observed that the authority of doctrines of international law has diminished in proportion to the growth of doctrines in today’s multicultural world.1157 This very likely includes ihl and the outputs of the icrc. What is more, the War on Terror and the armed conflicts in Afghanistan and other parts of the Middle East have triggered various debates on complex but generally under-​researched legal issues of ihl, such as targeted killing or detention in non-​international armed conflicts.1158 In many cases, ihl does not provide explicit or specific rules.1159 In these debates, on the one hand, the operational freedom and the interests of the Western states involved in armed conflicts have been advocated for in particular.1160 On the other hand, arguments drawing on the principle of humanity have been emphasised.1161 These contrasts have become so entrenched that sometimes a classification

1154 E.g., Kenneth Anderson’s Law of War and Just War Theory Blog was founded in 2004; Opinio Juris in 2005; ejil:Talk! in 2008; Lawfare in 2010; Intercross in 2011; Armed Groups and International Law in 2012; Just Security in 2013; Humanitarian Law & Policy in 2016; Articles of War in 2020; International Humanitarian Law Blog in 2021. See on the relationship between the impact of international humanitarian law scholarship and blogs also Shereshevsky, ‘Back in the Game’, 20. 1155 The International Review of the Red Cross, founded in 1869, was the only thematic journal on ihl for a long time. The first alternative, the Military Law and the Law of War Review /​Revue de Droit Militaire et de Droit de la Guerre, exists only since 1962. The first textbook on ihl was published under the auspices of the icrc, c.f. M. Sassòli and A. A. Bouvier, How Does Law Protect in War? (icrc, 1999). 1156 Ruffert, ‘Zwischen Quelle und Gericht’, pp. 234–​5. 1157 W. Heintschel von Heinegg, ‘Weitere Quellen des Völkerrechts’, in Knut Ipsen (ed.), Völkerrecht, 6th edn. (c.h. Beck, 2014), p. 510. 1158 Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 248–​9. 1159 Cf. Crawford, ‘Regulating the Irregular’, 20 (observing that ‘modern armed conflict has become a considerably more complex and chaotic endeavour in the sixty years since the adoption of the Geneva Conventions’). 1160 See in this regard also the case study on the 2014 Gaza conflict and Israeli targeting policy in Hughes and Shereshevsky, ‘State-​Academic Lawmaking’. 1161 Cf. Baade, Mührel and Petrov, ‘Concluding Observations’, p. 234; N. K. Modirzadeh, ‘Folk International Law’, in J. D. Ohlin (ed.), Theoretical Boundaries of Armed Conflict and Human Rights (cup, 2016), pp. 196–​7.

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into two communities of law of armed conflict and international humanitarian law scholars is made.1162 Accordingly, compared to the Pictet Commentaries or the ap Commentary, the Study, the Guidance and the new Commentaries had to face a much broader and more diverse expert audience when published.1163 Nowadays, interpretations and identifications of law must demonstrate that they consider humanitarian concerns as well as demands of effective warfare if they seek to make a comprehensive impact in the legal discourse.1164 Therefore, the expert processes played a decisive role for the Study’s, the Guidance’s and the new Commentaries’ authority. However, the icrc only had success in undertaking an expert process for the Study and the new Commentaries –​both are widely accepted among the international humanitarian law and law of armed conflict scholars –​but not for the Guidance, which is widely rejected by law of armed conflict scholars. How do the approaches to the expert processes for these three outputs differ? The Study and the new Commentaries are not direct products of consensual expert processes –​they were only informed by expert consultations. The names of the participating experts are included in the documents, which implies their support for the outcomes. Only a few participating experts criticised the Study or the new Commentaries after their publication. In comparison, the Guidance was originally intended as a consensual product from an expert process, but experts left the process and heavily criticised the Guidance after its publication. The other participating experts have remained unknown.1165 This gives the impression that the Guidance is not based on a consensus among the international humanitarian law and law of armed conflict scholars but is an independent effort of the icrc. This is probably a decisive reason for the rejection of the Guidance by law of armed conflict scholars. 1162 See e.g. Shereshevsky, ‘Back in the Game’, 52–​61; Venzke, ‘Authoritative Interpretation’, para. 16; E. Lieblich, ‘The Law of Warfare: 1989–​2022’, in E. Benvenisti and D. Kritsiotis (eds.), Cambridge History of International Law (Vol. xii): International Law Since the End of the Cold War (cup, forthcoming). 1163 Cf. Sassòli, International Humanitarian Law, para. 4.67 (‘It is a sign of our times that Anglo-​Saxon military lawyers have criticized [the new Commentaries] more heavily than the Pictet Commentaries’). 1164 See with further references Baade, Mührel and Petrov, ‘Concluding Observations’, pp. 238–​ 9. This probably also explains the nowadays less important role of individual scholars and the trend towards expert processes, observed by Sivakumaran, ‘The Influence of Teachings of Publicists’, 37; Sassòli, International Humanitarian Law, paras. 4.78–​4.80. 1165 Note on this fact also Petrov, Expert Laws of Wars, p. 47 (‘The fact that the participating experts have remained mostly unknown marks a peculiar trait of the Interpretive Guidance. The list of experts usually features prominently in expert work’).

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Consequently, the Guidance’s authority is weaker when compared to the Study and the new Commentaries. Expansion of International Law 6.3 A third reason accounting for the changes in the marks and different degrees of authority could be explained by the fact that international law in general has expanded and become more complex.1166 For instance, international human rights law, international investment law or international environmental law were still in their infancy at the time of writing for the Pictet Commentaries and the ap Commentary. Nowadays, the application of these and many other branches of international law in times of armed conflicts is broadly discussed, in particular where ihl lacks detailed rules.1167 This includes not only formal international law, but also several informal sources.1168 Furthermore, the community of states and international organisations has significantly grown,1169 and with it the amount of legal practice to be considered when interpreting or identifying the rules of international law.1170 The 1166 Cf. Dinstein, ‘Keynote Address’, 701 (‘The universe of international law appears to be very much like the physical universe: it is constantly expanding’). 1167 For international human rights law, see e.g. N. Lubell, ‘Challenges in applying human rights law to armed conflict’ (2005) 87(860) irrc 737–​54; K. Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98(1) ajil 1–​34; T. Rodenhäuser, Organizing Rebellion: Non-​state armed groups under international humanitarian law, human rights law, and international criminal law (oup, 2018). For international investment law, see e.g. I. Ryk-​Lakhman Aharonovich, ‘Foreign Investments as Non-​Human Targets’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos, 2018); C. Lülf, ‘The Protection of (Foreign) Investment during Belligerent Occupation: Considerations on International Humanitarian Law and International Investment Law’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos, 2018). For international environmental law, see e.g. W. D. Verwey, ‘Protection of the Environment in Times of Armed Conflict: In Search of a New Legal Perspective’ (1995) 8(1) ljil 7–​40; M. Bothe and others, ‘International law protecting the environment during armed conflict: gaps and opportunities’ (2010) 92(879) irrc 569–​92. For other branches of international law, see Sassòli, International Humanitarian Law, Chapter 9. 1168 Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles’, 733–​4. 1169 Compare e.g. the number of state parties to the Geneva Conventions and the Additional Protocols at the time of publication of the Pictet Commentaries (1960: 73) and the ap Commentary (1986: 53 for Additional Protocol i and 58 Additional Protocol ii) and today (Geneva Conventions: 196; Additional Protocol i: 174; Additional Protocol ii: 169). 1170 See ilc, Fourth report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​695 (8 March 2016) para. 45 (‘the expanded number of States (and international organizations), the far greater volume of international intercourse, and the multiple formats of evidence now in existence, pose significant challenges to a thorough enquiry into the practice and opinio juris of States. The sheer quantity of

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same can be observed for the jurisprudence of international courts and tribunals. Finally, civil society plays an increasing role in the development of international law –​in particular human rights law1171 –​and impacts the legal discourse.1172 In sum, considerably more varied interests are involved in today’s international law compared to the times in which the Pictet Commentaries and the ap Commentary were published.1173 These interests must be considered and balanced.1174 This development further explains the role of the underlying methodology and the underlying expert processes for the authority of the Study, the Guidance and the new Commentaries. 6.3.1 Methodology To demarcate and mediate the different interests involved in international law, certain standards have developed for the interpretation of treaties, the identification of customary international law, and the interplay between the different branches of international law,1175 which must be carefully taken into account in order to generate acceptance in legal discourse.1176 However, the acceptance of interpretations and law-​ascertainments depends crucially upon who establishes or supports the standards relied on and how determining these standards are. Against this background, the underlying methodology plays a particular role for the authority of the Study and the new Commentaries.

available material is daunting’); Baade, Mührel and Petrov, ‘Concluding Observations’, p. 236. 1171 Sassòli, International Humanitarian Law, para. 9.04. 1172 For the role of the civil society in the development of ihl, see e.g. Maresca and Lavoyer, ‘The Role of the icrc in the Development of International Humanitarian Law’, 507. See also Dinstein, ‘Keynote Address’, 702 (‘At present, almost every “do-​good” ngo in the world wants “a piece of the action” (whether or not it passes muster in terms of proper professional expertise)’). 1173 Note in this regard, e.g., that the interpretation of Common Article 3 grew from approximately 9,100 words in the 1952 Pictet Commentary on gc i to over 65,000 words in the new Commentary on gc i, see Watts, ‘The Updated First Geneva Convention Commentary: Part I’. 1174 See also T. Altwicker and O. Diggelmann, ‘How is Progress Constructed in International Legal Scholarship?’, 441–​2. 1175 Consider in this context, e.g., the background on the adoption of Articles 31–​33 vclt and the subsequent discussions on the interpretation of these rules, the discussions on the ‘correct’ identification of customary international law, as well as the discussion on the fragmentation of international law. 1176 Cf. Baade, Mührel and Petrov, ‘Concluding Observations’, p. 237; Keller and Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’, p. 167.

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The Study was, to a large extent, based on the findings of the International Law Association on the identification of customary international law, which at that time did not reflect a general consensus among legal scholars, not to mention states.1177 As a result, the Study’s methodology was subject to broad criticism, particularly regarding the selection and evaluation of state practice. It was only after the Study was completed that the International Law Commission started its work on the identification of customary international law.1178 The 2018 adopted conclusions will receive more acceptance than the findings of the International Law Association, especially from states.1179 For the new Commentaries, the icrc can rely on the vclt rules on interpretation, the jurisprudence of the International Court of Justice and works of the International Law Commission. In particular, the International Law Commission’s work on subsequent agreements and subsequent practice in relation to the interpretation of treaties, completed in 2018, is relevant. This leads to the impression that all relevant legal materials and interests are taken into account and balanced within the framework of the generally applicable standards. Consequently, the underlying methodology has hardly been criticised. The Guidance to a large extent focuses on interpretations of rules of customary ihl and the interplay between ihl and international human rights law. For both, universally accepted and well-​determined standards have not developed to date. There is much room for debate. Accordingly, the Guidance was criticised for the weighting of state practice in the interpretation of customary ihl or, especially in the case of Part ix, the interpretation of the principle of military necessity and the inclusion of international human rights standards.1180

1177 See e.g. ilc, Second report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​672 (22 May 2014), para. 27 (‘While such writings are always interesting and provocative, and have been (and should be) duly taken into account, it remains the case that they do not seem to have greatly influenced the approach of States or courts’). 1178 unga, Resolution adopted by the General Assembly on 14 December 2012, UN Doc a/​ Res/​67/​92 (14 January 2013) para. 7. 1179 Note in this regard that the reports of the special rapporteur are already cited in textbooks, while the International Law Association’s report is rarely mentioned, see e.g. A. Tanzi, Introduzione al Diritto Internazionale Contemporaneo, 6th edn. (Wolters Kluwer and cedam, 2019), pp. 95–​111; A. von Arnauld, Völkerrecht, 3rd edn. (c.f. Müller, 2016), pp. 104–​7; J. Crawford, Brownlie’s Principles of Public International Law, 9th edn. (oup, 2019), p. 27. 1180 See in this Chapter, at 4.1.

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6.3.2 Expert processes With the expansion and diversification of international law, legal scholarship also has grown in its diverse fields.1181 Today, there is not just one ‘Invisible College of International Lawyers’ as predicted by Oscar Schachter in 1977.1182 The fragmentation of international law has led to many invisible colleges of international lawyers.1183 As a result, experts from other fields of international law participate in the debates on ihl where the application of the legal regimes overlaps.1184 Consequently, sometimes a wide range of positions can be found in relation with a legal issue, no matter how subtle.1185 In order to gain acceptance in the respective expert communities, it is necessary to involve these experts in the underlying expert processes. This can further complicate the expert processes, in addition to the polarisation between international humanitarian law scholars and law of armed conflict scholars. This was observed in relation to the Guidance, which involved human rights scholars.1186 In this regard, a statement by Yoram Dinstein gives an impression of how challenging the reach of a consensus between law of armed conflict scholars and human rights scholars can be: The trouble is that zealous advocates of human rights law are not willing to yield the moral high ground. They behave like the high priests of a Holy Gospel who regard any deviation from their received dogma as apostasy. … They think that, by rejecting military necessity, they will lead us to utopia.1187

1 181 Stahn and de Brabandere, ‘The Future of International Legal Scholarship’, 6. 1182 O. Schachter, ‘The Invisible College of International Lawyers’ (1977–​ 1978) 72(2) Northwestern University Law Review 217–​26 at 221 (‘Should we expect –​and even encourage –​a similar development toward specialization in the study of international law? My own view is that this is not likely in the near future, nor is it desirable’). 1183 J. von Bernstorff, ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’ (2015) 25(4) ejil 977–​90 at 987. 1184 See e.g. the discussion of ihl in: UN Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories: Report of the UN Fact-​Finding Mission on the Gaza Conflict, UN Doc a/​h rc/​12/​48 (25 September 2009) paras. 270–​85. 1185 Cf. von Bernstorff, ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’, 982–​3; Sassòli, International Humanitarian Law, paras. 4.78–​4.80. 1186 The fact that human rights experts participated in the expert process although the Guidance is limited to the conduct of hostilities (cf. Melzer, Interpretive Guidance, p. 11) shows the relevance of issues of ihl for international human rights law. 1187 Dinstein, ‘Keynote Address’, 705. Cf. also M. Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20(1) Duke Journal of Comparative & International Law 69–​132.

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In fact, no consensus was reached in the expert process underlying the Guidance due to disagreements on substantial issues, and in particular, on the question of what modalities govern the loss of protection between human rights scholars and international humanitarian law scholars, on the one hand, and law of armed conflict scholars, on the other. Several law of armed conflict scholars even left the process. In comparison, the Study primarily focuses on the identification of customary ihl and hardly deals with other areas of international law. Yet, the criticism of the way the Study considered the case law of the European Court of Human Rights1188 shows how sensitive the inclusion of materials from other areas of international law is for criticism. The new Commentaries concern other areas of international law. However, the underlying expert process is organised in a different way and human rights scholars merely ‘provide comments’ within the peer-​review group.1189 The interpretations thus do not build on a consensus among the experts involved. Nevertheless, their inclusion implies their consensus with the new Commentaries. 7

Conclusion: The Change of the icrc’s Role for International Humanitarian Law

This chapter separately examined the authority of five different publications of the icrc based on their reception in legal practice and academia. The following conclusions can be drawn from this examination regarding the icrc’s role for ihl. For a long time, the icrc, through the Pictet Commentaries and the ap Commentary, shaped the meaning of rules of the Geneva Conventions and the Additional Protocols. Both enjoyed a special status in legal practice and academia and were almost elevated to primary sources of international law. For both Commentaries, it seems that the extent of their influence was not perceived as something unusual for international law. They were given more weight than, for instance, academic writings. In academia, there was no discussion of the Commentaries after their publication and, in legal practice, only rarely a question about their legal status could be observed. Hence, the icrc had a considerable amount of leeway in the interpretation of ihl.

1 188 See in this Chapter, at 3.1.1. 1189 icrc, Commentary on the First Geneva Convention, Acknowledgements.

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The examination of the Study’s, the Guidance’s and the new Commentaries’ authority demonstrates that this role of the icrc changed. The icrc’s interpretations and law-​ascertainments are viewed much more critically. Over the course of time, restrictions on interpretations and law-​ascertainments have developed, particularly with regard to the methodology by which the new icrc publications are assessed. Moreover, various actors have come alongside the icrc and are also trying to shape ihl. While there was one competing commentary on the Additional Protocols for the ap Commentary at the time of publication, the Study, the Guidance and the new Commentaries compete with numerous expert opinions and court decisions, among others. In particular, some states, mostly through unilateral initiatives, aim to regain control over the law-​making process in ihl and to diminish the icrc’s role. As a consequence, the icrc has less influence on ihl through interpretations and law-​ ascertainments, which is shown in particular by the reception of the Guidance and the new Commentaries in academia and legal practice. Both publications are unsuccessful in securing their interpretations as the status of law to the same extent as the Pictet Commentaries and the ap Commentary. An exception to this development is the Study, which has been accepted despite criticism by academics and reservations by states. The reason for this is that the Study’s Rules are difficult to falsify because of the amount of collected state practice. Moreover, after initial criticism, the methodology to identify rules of customary law underlying the Study has become broadly accepted, among others by the International Law Commission. While this chapter primarily focused on the role of the icrc’s interpretations and law-​ascertainments for ihl, the next chapter considers the broader picture. It examines how the icrc’s outputs influence the structural rules of international law.

­c hapter 3

The icrc’s Impact on the Structural Rules of International Law The traditional point of reference for the sources of international law is Article 38 (1) icj Statute. However, there is a constant debate about the requirements that these sources of international law impose. What is meant by customary international law as ‘evidence of a general practice accepted as law’? Article 38 (1) (b) provides no answer to this issue.1 Regarding treaties, it is usually not so much a question of what constitutes a treaty,2 but how treaties should be interpreted. In this context, Articles 31 and 32 vclt are at the centre of debate. For instance, what conduct constitutes subsequent practice in the meaning of Article 31 (3) (b),3 and whether non-​state actors play a role under Articles 31 and 32,4 are controversial questions with different answers. The determination of these ‘structural rules’5 of international law or the ‘meta-​law of sources’ is decisive for establishing what international 1 2 3 4

5

Kammerhofer, ‘Uncertainty in the Formal Sources of International Law’, 536 (‘we can neither adequately know the rules of custom-​formation nor how those rules come about’). For an exception, see the discussion on the legal binding of the Statutes of the Red Cross and Red Crescent Movement in Chapter 1, at 2.2. See e.g. the many considerations by O. Dörr, ‘Article 31: General Rule of Application’, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn. (Springer, 2018), paras. 77–​86. Compare, e.g., the ilc draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties in unga, Report of the International Law Commission (2018), pp. 11–​116, in particular draft conclusions 5 (2) and 13, and International Law Association, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (2004). Structural rules, also known as secondary rules, are those rules that determine how primary rules come about, or how such primary rules are to be interpreted or identified, and what are the consequences of violations of these rules. See also H. L. Hart, The Concept of Law (oup, 1986), p. 92 (who divides rules, within the context of the municipal legal order, into two categories, primary rules, which directly govern conduct, and secondary rules, which ‘specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’). At the time of writing in 1961, Hart found that international law mostly consisted of primary rules and therefore refused to accord international law the status of a legal system (pp. 208–​ 31). However, others, e.g. Merdan Payandeh and Sean Murphy, argue that in today’s international law strong secondary rules can be identified. Among others, they refer to the Vienna Convention on the Law of Treaties, Article 38 (1) icj Statute, the Articles on State

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_005

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law6 ultimately is and identifying the influential (or uninfluential) actors in shaping international law. Various stakeholders with different interests take part in the process of determining the structural rules of international law. This process is also described as ‘the struggle for law’,7 to emphasise the competition between the stakeholders for influence on international law. This chapter examines the role of the icrc in this struggle for law. It asks what the (potential) impact of the Commentaries, the Study and the Guidance is on the formation of customary international law and the interpretation of treaties. 1

Identification of Customary International Law

As evidenced by the intense discussions on the Study’s underlying methodology in academia and the criticism it received by states,8 the methodology to identify rules of customary international law was highly controversial at the time of the Study’s publication. The Study intensified a debate on customary ihl including questions of how customary international law is formed, what constitutes state practice and opinio juris, what the role of treaty law is in the formation of custom, and how to identify specially affected states and persistent objectors.9 When introducing the process of the formation of customary ihl at present times, reference is almost exclusively made to the Study and the reactions thereto.10 Furthermore, some international legal scholars claim that the Study has not only triggered a debate, but has influenced the methodology for identifying customary international law.11 However, these observations do not specify the influence of the Study. They merely focus on customary ihl and do not consider the recent work of the International Law Commission on the identification of customary international law, which will

Responsibility, law-​making by international organisations, or the jurisdiction of international courts and tribunals, see M. Payandeh, ‘The Concept of International Law in the Jurisprudence of h.l.a. Hart’ (2010) 21(4) ejil 967–​95 at 982–​93; S. D. Murphy, ‘The Concept of International Law’ (2009) 103 Proceedings of the asil Annual Meeting 165–​9 at 169. 6 Kammerhofer, ‘Uncertainty in the Formal Sources of International Law’, 523. 7 See e.g. Sivakumaran, ‘Beyond States and Non-​State Actors’, 378. 8 See Chapter 2, at 3.1.1 and 3.3. 9 Cf. also McCormack, ‘An Australian Perspective’, 88 (‘This debate is redolent, even if smaller in scale, of the debate following the decision of the [icj] in the Nicaragua case’). 10 See e.g. Heinsch, ‘Methodology of Law-​Making’, p. 19 (referring almost exclusively to reactions to the Study). 11 Geiss and Zimmermann, ‘The International Committee of the Red Cross’, p. 235; Hakimi, ‘Custom’s Method and Process’; Sassòli, International Humanitarian Law, para. 4.34.

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probably become an authoritative statement on the identification of customary international law,12 despite providing only ‘conclusions with commentary’ instead of ‘hard-​and-​fast rules’.13 Accordingly, the question remains: What influence has the Study had on the discourse on the identification of customary international law, inter alia, in the recent works of the International Law Commission? Of course, the icrc is only one actor among the many who participate in this discourse, therefore making it difficult to specify the Study’s precise influence. The International Court of Justice,14 as well as the international criminal tribunals,15 among others, have significantly shaped the methodology for the identification of customary international law. For instance, the judgments of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua16 and the icty in Tadić17 played a decisive role in the

12

13 14 15

16 17

Cf. Caron, ‘The ilc Articles on State Responsibility’. The work of the International Law Commission on the identification of customary international law has already been cited in several international law textbooks, see e.g. Tanzi, Introduzione al Diritto Internazionale Contemporaneo, pp. 95–​111; von Arnauld, Völkerrecht, pp. 104–​7; Crawford, Brownlie’s Principles of Public International Law, p. 27. ilc, First report on formation and evidence of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​663 (17 May 2013) para. 18. Cf. e.g. ibid, paras. 54–​65. See e.g. C. Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’ (1998) 2 Max Planck Yearbook of United Nations Law 97–​140 at 128; Danner, ‘When Courts Make Law’; M. Swart, ‘Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and “Adventurous Interpretation”’ (2010) 70(3) Heidelberg Journal of International Law 459–​86; N. Arajärvi, ‘From the “Demands of Humanity”: The Formulation of Opinio Juris in Decisions of International Criminal Tribunals and the Need for a Renewed Emphasis on State Practice’, in B. D. Lepard (ed.), Reexamining Customary International Law (cup, 2017), pp. 205–​7. See also various contributions in Darcy and Powderly, Judicial Creativity at the International Criminal Tribunals. icj, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, icj Rep 1986, p. 14, paras. 183–​207. icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1-​a r72 (2 October 1995) para. 99 (‘[A]‌word of caution on the law-​making process in the law of armed conflict is necessary. When attempting To ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behavior … In appraising the formation of customary rules or general principles one should therefore be aware that, on account of the inherent nature of this subject-​matter, reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions’).

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acceptance of verbal acts as evidence of state practice.18 The Study, which broadly includes verbal acts for the identification of customary ihl, relied on this case law in its methodological approach.19 In general, the Study did not innovate a way to identify customary international law. Rather, it mostly relied on the outputs of other actors,20 especially the International Law Association’s Final Report of the Committee on the Formation of Customary (General) International Law. However, the Study is the only output that extensively identifies rules of customary international law claiming universal validity. Thus, it can be more directly applied and is more likely to cause reactions by states as compared to purely theoretical considerations or approaches that are limited to an individual case.21 In this context, a statement by Sir Michael Wood (special rapporteur of the International Law Commission working group on the identification of customary international law) implies that the Study was indeed of unique value to the work of the International Law Commission: When the ilc began its work on the topic in 2012, almost the only recent and reasonably detailed statements by states on how rules of customary international law were to be identified were those stimulated by the icrc study on cihl. The very fact that the icrc had produced its study gave rise to important statements on how to identify rules of customary international law, not only by certain governments, but also by the icrc itself and by individual experts.22 The various (critical) reactions to the Study indicate that the previous outputs on which its methodology is based were not unanimously accepted at the time of its publication. For instance, in their reactions to the Study, US government officials and legal scholars emphasised the relevance of operational state practice and state practice contrary to treaties that are not universally accepted.23 In line with Military and Paramilitary Activities in and against Nicaragua, Tadić and the International Law Association’s report, the icrc highlighted the 18 19 20

See also Hakimi, ‘Custom’s Method and Process’, p. 168. Ibid, p. 169; Heinsch, ‘Methodology of Law-​Making’, pp. 19–​20. E.g. with regard to the reliance of the Study on the jurisprudence of the icty, see Darcy, Judges, Law and War, p. 220. 21 For the various reactions by states to the Study, see Chapter 2, at 3.3. Additionally, note in this regard, the reactions by states to the Guidance discussed above in Chapter 2, at 4.3. 22 Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 729. 23 See Chapter 2, at 3.1.1 and 3.3.1.

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relevance of verbal state practice and that contrary practice may reflect a violation of a rule rather than the development of a new rule.24 In the words of Sir Michael Wood, the Study can be seen as ‘a catalyst for much thinking about the methodology for determining the rules of customary international law.’25 Accordingly, the question is: To what extent has the Study –​as a catalyst –​ achieved consensus for the methodology it relied on to identify the 161 Rules of customary ihl? To answer this question, the following subsections analyse whether and to what extent the Study’s methodology was considered in academic writings, especially textbooks on international (humanitarian) law, and in the recent work of the International Law Commission on the identification of customary international law. The few above-​shown references to the Study’s methodology in the jurisprudence of international courts and tribunals,26 as well as state practice,27 are not taken into account since they only represent a sporadic and isolated involvement with the Study and are thus not informative for the Study’s influence on the formation of customary international law. 1.1 Role in Academic Works The Study plays no role in the chapters on customary international law in most textbooks on public international law published after 2005.28 Only a few 24

For further differences between the US government’s position and the Study’s methodology, see Erakat, The US v. the Red Cross, 229. 25 Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 735. 26 See Chapter 2, at 3.2. 27 See Chapter 2, at 3.3.3. 28 See e.g. I. Brownlie, Principles of Public International Law, 7th edn. (oup, 2008), pp. 6–​12; M. N. Shaw, International Law, 8th edn. (cup, 2017), pp. 53–​69; Heintschel von Heinegg, ‘Weitere Quellen des Völkerrechts’, pp. 471–​9; С. А. Егоров, Международное право: Учебник (Статут, 2016), pp. 75–​8 (however, without explicit reference to the Study, stating that, next to some of the Hague Conventions of 1907, ‘according to eminent representatives of legal doctrine, a number of provisions of the Geneva Conventions of 1949 on the protection of war victims have also acquired the character of universally recognised customs.’ [translated by the author]); Focarelli, International Law, pp. 112–​29. According to an examination by Anthea Roberts, no reference to the Study (or any other interpretation or law-​ascertainment by the icrc) is made in three Chinese textbooks on international law and only one reference to the Study is made in one out of three Russian textbooks on international law, see Roberts, Is International Law International?, pp. 337–​ 53. In fact, in Chinese textbooks, ihl is usually placed at the end since often it is not compulsory for final exams, although in some universities there are elective courses on ihl. In one Chinese textbook, only the Study’s existence is mentioned, see Z. Zhou, 国际 法 [International Law] (China University of Political Science and Law Press, 2013), p. 471.

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exceptions exist. For instance, Anthea Roberts’ and Sandesh Sivakumaran’s chapter on the sources of international law in Malcom Evan’s international law textbook cites the Study as a rare example of considering practice and opinio juris by a great number of states, and discusses the impact of the icrc on the formation of customary ihl.29 Likewise, Matthias Herdegen’s textbook makes a reference to the criticism of the Study by the US government and the response by Jean-​Marie Henckaerts for the discussion of whether verbal acts count as state practice.30 The lack of reference to the Study in most textbooks does not imply a general deviation from the Study’s methodology. Normally, textbooks on international law explain the identification of customary international law in a rather unspecific way –​citing case law of the International Court of Justice.31 In content, the textbooks are mostly consistent with the Study’s methodology.32 The picture is slightly different for textbooks on ihl. A few textbooks –​ especially from US and Russian legal scholars –​completely ignore the Study in their chapters on the sources of ihl. As an example from the US, Gary Solis does not refer to the Study when explaining customary ihl.33 In a later chapter that introduces the icrc (as ‘a respected corporate publicist’), Solis mentions the Study ‘should not be overlooked’ despite the criticism and rejection of the Study by some governments.34 However, Solis does not engage with the Study’s methodology. Overall, the Study hardly plays a role in his textbook.35 Likewise, Laurie Blank and Gregory Noone make no reference to the Study, although they consider certain aspects of customary ihl that are discussed extensively in the Study, such as the problem that only some states are actively engaged in armed conflicts, the important role of responses to violations of ihl, and the icrc’s

29 30 31 32 33 34 35

A. Roberts and S. Sivakumaran, ‘The Theory and Reality of the Sources of International Law’, in M. D. Evans (ed.), International Law, 5th edn. (oup, 2018), pp. 105, 111–​2. Herdegen, Völkerrecht, p. 142 (see also in the Chapter on ihl at p. 415). See also Arnauld, Völkerrecht, p. 105 (referring to the US letter to the icrc when problematising the reliance on state practice that has its reasons in constitutional, but not international law). See e.g. H. Strydom, ‘International Law Making as an Attribute of State Sovereignty’, in H. Strydom (ed.), International Law (oup, 2016), pp. 90–​3; J. Klabbers, International Law, 2nd edn. (cup, 2017), pp. 29–​36; Crawford, Brownlie’s Principles, pp. 21–​8. E.g. with regard to the acceptance of verbal acts as state practice, see J. Crawford, Brownlie’s Principles of Public International Law, 8th edn. (oup, 2012), p. 24; Hugh W A Thirlway, The Sources of International Law, 2nd edn. (oup, 2019), p. 73. G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2nd edn. (cup, 2016), pp. 13–​5. Ibid, p. 21. Only one other time the Study is mentioned when rejecting Rule 42, ibid, p. 516.

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role for the formation of customary ihl.36 As an example from Russia, Ivan Kotlyarov does not mention the Study in his chapter on the sources of ihl.37 Later, when introducing the ‘legislative role of the icrc’, Kotlyarov limits his observations to the icrc’s involvement in the development of treaty-​based ihl and does not discuss the icrc’s efforts in the identification of customary ihl.38 The same can be observed for Vyacheslav Batyr’s textbook.39 Other ihl textbooks refer to the Study after briefly highlighting the difficulties with the identification of customary ihl. Although, this reference is done without discussing the Study’s role in the identification of customary ihl. For instance, Jonathan Crowe and Kylie Weston-​Scheuber introduce the Study, by stating that [f]‌ortunately, the [icrc] has produced a comprehensive study on customary international humanitarian law that seeks to document relevant state practice and codify the corresponding customary rules. The icrc Study is not necessarily decisive as a statement of international law, but it provides a highly persuasive starting point for examining the customary rules governing armed conflict.40 In comparison, the textbooks written by Emily Crawford and Alison Pert, or Marco Sassòli deal with the problems in the identification of customary ihl in more detail and, in this context, include the Study’s methodology.41 When discussing the acceptance of verbal acts as state practice, Crawford and Pert highlight that one of the critiques of the Study was ‘that it focused too much on statements and sources that could have been driven more by

36 37 38 39 40

41

Blank and Noone, International Law and Armed Conflict, pp. 13–​5. И. И. Котляров, Международное гуманитарное право, 3rd edn. (Юнити, 2012), pp. 13–​4. Ibid, pp. 239–​47. В. А. Батырь, Международное гуманитарное право: Учебник для вузов, 2nd edn. (Юстицинформ, 2011), pp. 37–​8. Crowe and Weston-​Scheuber, Principles of International Humanitarian Law, pp. 25–​7. See also H.-​P. Gasser and N. Melzer, Humanitäres Völkerrecht: Eine Einführung, 2nd edn. (Nomos and Schulthess, 2012), pp. 57–​8; Melzer, International Humanitarian Law, pp. 21–​ 3; W. Zhu, 国际人道法 [International Law] (The Commercial Press, 2018), pp. 124–​30 (only summarising the icrc’s working process of the Study and approving its authoritativeness and significance). See also Kolb, Advanced Introduction to International Humanitarian Law, pp. 41–​3 (referring to the Study when explaining how customary ihl rules are to be deduced from state practice, or how customary ihl is formed in case of absence of state practice).

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policy, rather than being a statement of binding legal obligation.’42 Against this background, they conclude that caution must be exercised in identifying state practice and explain that they adopt an approach of ‘cautious acceptance’ of the Study in their textbook. In case of controversies about a rule’s customary status, ‘the icrc position is noted with caution, and additional supporting practice is sought.’43 Sassòli refers to the Study when arguing that not only must the actual conduct of states be considered for the identification of customary ihl, but also state declarations. Conduct on the ground must only be taken into account if it is officially condoned.44 Sassòli also deals with the criticism of the Study made by the US government when discussing the role of military manuals. In this regard, he supports the Study’s conclusion that military manuals represent official practice.45 Lastly, he discusses the Study’s position that the legal significance of non-​state actors’ practice is unclear but does not share this view.46 Other than textbooks, the Study is frequently a point of reference in academic publications generally dealing with the identification of customary international (humanitarian) law,47 or certain aspects of customary international law, such as specially affected states.48 In sum, it can be concluded that the Study has influenced the academic theorising on the identification of customary ihl. The Study has found acceptance –​as a catalyst –​for many positions on the identification of customary 42 43 44 45 46 47

48

Crawford and Pert, International Humanitarian Law, pp. 39–​40. Ibid. However, in the end, the textbook only once cites the Study with caution regarding Rules 4 and 106, see p. 95. Sassòli, International Humanitarian Law, para. 4.36. Ibid, para. 4.38. Ibid, para. 4.41. See e.g. Kleffner, ‘Sources of the law of armed conflict’, pp. 77–​80; Heinsch, ‘Methodology of Law-​Making’, pp. 24–​30 (discussing the use of verbal practice and agreeing with the icrc’s position); Hakimi, ‘Custom’s Method and Process’; F. R. Tesón, ‘Fake Custom’, in B. D. Lepard (ed.), Reexamining Customary International Law (cup, 2017), p. 89 (stating that the Study is a ‘modern fine example of application of the classical theory of customary law … In that study the authors researched a dense record of state practice –​the practice of war –​to extract conclusions about the laws of war supported by that practice’); N. Chandrahasan, ‘The Continuing Relevance of Customary International Law in the Development of International Humanitarian Law’ (2009) 21(2) Sri Lanka Journal of International Law 55–​70. In this context, Jean d’Aspremont’s chapter on customary ihl is the only example that almost exclusively criticises the Study’s methodological approach, see J. d’Aspremont and J. de Hemptinne, Droit international humanitaire: Thèmes choisis (Pedone, 2012), pp. 25–​44. K. J. Heller, ‘Specially Effected States and the Formation of Custom’ (2018) 112(2) ajil 191–​ 243 at 207, 211, 217–​9, 223, 228–​9, 234, 240.

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international law on which its own methodology relies. It is cited as an authority on these positions. However, the analysis of textbooks also indicates that the acceptance of the Study as an authority on the identification of customary international law is influenced by the (personal and professional) origin of the respective author and the extent to which the publication covers ihl. Role in the Work of the International Law Commission on the Identification of Customary International Law In 2018, the International Law Commission concluded its work on the identification of customary international law. First, this section examines to what extent the final outcome of the International Law Commission’s work, i.e. its conclusions and the commentary, corresponds with the Study’s methodology.49 Subsequently, the influence of the Study on the work of the International Law Commission is analysed.

1.2

1.2.1

Comparison of the International Law Commission’s Conclusions on the Identification of Customary International Law and the Study’s Methodology The International Law Commission, as well as the Study, start from the two-​ elements approach reflected in Article 38 (1) (b) icj Statute, meaning that customary international law is formed by a general practice that is accepted as law (opinio juris).50 Both stress the primary role of states and at the same time, 49

50

In line with this, in 2016, the icrc congratulated the International Law Commission for the adoption for the draft conclusions, which predominantly correspond with the finally adopted conclusions in 2018. See icrc, ‘Report of the International Law Commission: icrc statement to the United Nations, 2016’, 15 November 2016 accessed 31 August 2023, and unga, Sixth Committee, Summary record of the 24th meeting, UN Doc a/​c .6/​71/​s r.24 (29 November 2016) para. 25. Note that the same can be observed for the final outcome of the International Law Commission and the International Law Association’s report, on which the Study is based on to a large extent, cf. unga, Report of the International Law Commission, Sixty-​fourth session (7 May-​1 June and 2 July-​3 August 2012), UN Doc a/​c n.4/​653 (30 May 2012) p. 54; ilc, First report on formation and evidence of customary international law, paras. 7 and 89; G. Nuridzhanian, ‘Identifying Customary International Law: From the International Law Association’s Principles of 2000 to the International Law Commission’s 2016 draft’, ucl Journal of Law and Jurisprudence Blog, 24 October 2016 (noting that the ilc report was closely modelled on the ila’s work). Compare Conclusion 2 in unga, Report of the International Law Commission (2018), p. 124 and Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, pp. xxxvii-​xxxviii (‘The approach taken in this study to determine whether a rule of general customary international law exists is a classic one’).

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presume that the practice of international organisations under certain circumstances may contribute to the formation of customary international law.51 Regarding the role of other actors, they agree that in principle, the conduct of those actors does not contribute to the formation of customary international law and may only have an indirect influence.52 However, it is questionable whether, in this regard, there is consensus on the role of the icrc. While the International Law Commission’s commentary on conclusion 4 (3) makes clear that the conduct of the icrc is ‘not practice as such’,53 the Study points out that statements of the icrc have been included as relevant practice because the icrc has international legal personality. The practice of the organisation is particularly relevant in that it has received an official mandate from States … The view that icrc practice counts is also adopted by the International Criminal Tribunal for the Former Yugoslavia, which has regarded the organisation’s practice as an important factor in the emergence of customary rules applicable to non-​international armed conflicts.54 The Study’s approach remains unclear. On the one hand, it does not express that the icrc’s practice ‘can contribute to the formation of customary international law’, which it explicitly does with regard to the practice of international organisations.55 On the other hand, the legal personality of the icrc and international organisations is stated as the reason for the inclusion of their conduct as relevant practice.56 Jean-​Marie Henckaerts, in his response to the letter from the US government, however, clarified that icrc statements were not used as ‘primary sources of evidence’ for the Study, but were only ‘cited to reinforce conclusions that were reached on the basis of state practice alone.’57 51

Compare Conclusion 4 (1) and (2) in unga, Report of the International Law Commission (2018), p. 130 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xli. 52 Compare Conclusion 4 (3) in unga, Report of the International Law Commission (2018), p. 130 and Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, p. xli (‘While such practice may contain evidence of the acceptance of certain rules in non-​international armed conflicts, its legal significance is unclear and it has therefore been listed under “Other Practice” in Volume ii’). 53 unga, Report of the International Law Commission (2018), p. 132. 54 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xli. 55 Ibid. 56 Ibid. 57 Henckaerts, ‘A Response to US Comments’, 478.

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This, in turn, corresponds with the conclusions of the International Law Commission.58 In all respects, a different assessment of the icrc’s conduct in both the International Law Commission’s conclusions and in the Study would not indicate different views on the formation of customary international law in general, but only on the legal qualification of the icrc.59 Regarding the forms of practice, both the International Law Commission and the Study presume that practice may take a wide range of forms, including physical and verbal acts, as well as inaction.60 In general, the forms of state practice exemplarily listed by the International Law Commission in conclusion 6 (2) correspond to the practice used by the Study.61 As shown above,62 the role of verbal acts in particular was controversially discussed in the reactions to the Study. The International Law Commission, in its commentary on conclusion 6 (forms of practice), discusses the different positions on the relevance of verbal acts, concluding that, [w]‌hile some have argued that it is only what States ‘do’ rather than what they ‘say’ that may count as practice for purposes of identifying customary international law, it is now generally accepted that verbal conduct (whether written or oral) may also count as practice; indeed, practice may at times consist entirely of verbal acts.63 In addition, the International Law Commission explicates that there is no predetermined hierarchy among the various forms of practice, which confirms the approach taken by the Study and contradicts positions that were asserted in the discussions of the Study claiming that operational practice counts more than verbal acts.64 Convergence between the International Law Commission conclusions and the Study can also be generally observed on the question of how the practice

58 Cf. unga, Report of the International Law Commission (2018), p. 132 (‘publications of the icrc may assist in identifying relevant practice. Such activities may thus contribute to the development and determination of customary international law’). 59 For the legal qualification of the icrc’s outputs, see the Chapter 4 below. 60 Compare conclusion 6 (1) in unga, Report of the International Law Commission (2018), p. 133 and Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, pp. xxxviii–​x xxix, xl. 61 Ibid, pp. xxxviii–​x xxix. 62 See Chapter 2, at 3.1.1 and 3.3. 63 unga, Report of the International Law Commission (2018), p. 133. 64 Ibid, pp. 133–​4.

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of a state should be assessed.65 However, on the question of how to deal with the practice of a state that is unknown to other states, the International Law Commission’s conclusions contradict the Study. The Study assumes that state conduct does not contribute to the formation of customary international law if it is not known to other states. Nevertheless, the Study points out that practice counts as soon as it is publicly available or communicated to some extent. Regarding the latter, it already suffices if the practice is ‘communicated to one other State or a relevant international organisation, including the icrc.’66 The International Law Commission’s commentary to conclusion 5, however, demands that ‘practice must be known to other States (whether or not it is publicly available)’.67 It does not assume that state practice can be considered for the identification of customary international law when it has only been communicated to a (non-​governmental) organisation, but also does not expressly exclude this option.68 Both the International Law Commission’s conclusions, as well as the Study, rely on the International Court of Justice’s judgments in the North Sea Continental Shelf cases to claim that, for the identification of a rule of customary international law, the practice of states must be general.69 Both sources define this requirement in a very similar way. For the International Law Commission, ‘general’ means that the practice ‘must be sufficiently widespread and representative, as well as consistent.’70 According to the Study, the practice ‘has to be virtually uniform, extensive and representative’.71 Both assume that no particular amount of time is required for the practice to be general.72 Moreover, both

65

Compare Conclusion 7 in ibid, pp. 134–​5 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xl. 66 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xl. 67 unga, Report of the International Law Commission (2018), p. 133. 68 Ibid. 69 Conclusion 8 in ibid, pp. 135–​6; Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xliv. 70 Conclusion 8 (1) in unga, Report of the International Law Commission (2018), p. 135. Cf. also the commentary to Conclusion 8 at p. 136 (‘In the words of the International Court of Justice in the North Sea Continental Shelf cases, the practice in question must be “both extensive and virtually uniform”.’). 71 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xlii. 72 Compare ibid, xlii and Conclusion 8 (2) and the accompanying commentary in unga, Report of the International Law Commission (2018), pp. 136 and 138.

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similarly interpret the doctrine of specially affected states in a restrictive way73 and, based on the International Court of Justice’s judgment in Military and Paramilitary Activities in and against Nicaragua, assume that contrary practice does not automatically prevent a general practice from being established.74 For the requirement of opinio juris, the International Law Commission’s conclusions and the Study equally assume that the practice in question must be undertaken with a sense of a legal right or obligation.75 Both coincide in their presumption that opinio juris may take a wide range of forms of evidence, including physical and verbal acts, as well as inaction.76 In general, the forms of evidence of opinio juris exemplarily listed by the International Law Commission in conclusion 10 (2) correspond to the evidence used by the Study.77 A discrepancy appears to exist between the Study and the International Law Commission’s conclusions as to how the assessments (of the evidence) of the two constituent elements of customary international law relate to each other. In this regard, the International Law Commission, in conclusion 3 (2), stipulates that ‘[e]‌ach of the two constituent elements is to be separately ascertained. This requires an assessment of evidence for each element’,78 meaning that ‘the existence of one element may not be deduced merely from the existence of the other.’79 While starting from the same premise that, in general, the 73 Compare unga, Report of the International Law Commission (2018), pp. 136–​7 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xliv–​x lv. 74 Compare unga, Report of the International Law Commission (2018), pp. 137–​8 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xliii–​x liv. 75 Conclusion 9 in unga, Report of the International Law Commission (2018), p. 138; Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xlv–​x lvi. 76 Compare conclusion 10 (1) and the accompanying commentary in unga, Report of the International Law Commission (2018), p. 140 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xlv–​x lvi. (though, in contrast to the ilc, at pp. xlvii–​x lviii, the Study problematises inaction as opinio juris: ‘In the area of international humanitarian law, where many rules require abstention from certain conduct, omissions pose a particular problem in the assessment of opinio juris because it has to be proved that the abstention is not a coincidence but based on a legitimate expectation’). 77 Compare Conclusion 10 (2) in unga, Report of the International Law Commission (2018), p. 140 (note that the commentary to conclusion 10 (2) at p. 141 even explicitly refers to military manuals) and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xlv–​x lvii. 78 unga, Report of the International Law Commission (2018), p. 127. 79 Ibid, p. 129.

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two constituent elements have to be separately ascertained, the Study, in contrast, holds: When there is sufficiently dense practice, an opinio juris is generally contained within that practice and, as a result, it is not usually necessary to demonstrate separately the existence of an opinio juris.80 This approach is based on the consideration that it is difficult to strictly separate the evidence of practice and opinio juris since often the same acts reflect evidence for both constitutive elements, particularly when it comes to verbal acts.81 The Study’s approach to deducing the existence of an opinio juris in cases where there is evidence of dense practice is, as such, incompatible with the approach taken by the International Law Commission in conclusion 3 (2). Nonetheless, the latter’s accompanying commentary takes into account the consideration underlying the Study’s approach and acknowledges that ‘the same material may be used to ascertain practice and acceptance as law (opinio juris).’82 Accordingly, while the commentary simultaneously reemphasises ‘that the material must be examined as part of two distinct inquiries, to ascertain practice and to ascertain acceptance as law’,83 the difference in approach between the Study and the International Law Commission’s conclusions in this regard is theoretical in nature. Most likely, in practice, both approaches lead to the same results.84

80

Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xl. 81 Ibid. 82 unga, Report of the International Law Commission (2018), p. 129. See also in this regard the commentary to conclusion 10 (2) at p. 141 (‘There is some common ground between the forms of evidence of acceptance as law and the forms of State practice referred to in draft conclusion 6, paragraph 2 above; in part, this reflects the fact that the two elements may at times be found in the same material (but, even then, their identification requires a separate exercise in each case)’). 83 Ibid, pp. 129 and 141. 84 Cf. P. Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law (cup, 2016), pp. 313–​4 (‘In my view, even when the practice is consistent and uniform, it is still necessary to demonstrate opinio juris (see also US response). But, clearly that task is much easier in situations where there is overwhelming uniform and consistent State practice. This is the case if one recognizes that certain manifestations of State practice can evidence both the practice of a State and its opinio juris’).

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Finally, the Study and the International Law Commission’s conclusions also coincide regarding some specific aspects of the identification of customary international law. For instance, both assume the same prerequisites under which treaty rules,85 or resolutions of international organisations and intergovernmental conferences,86 may reflect the constitutive elements or contribute to the development of customary international law. The Study’s use of treaty rules for the identification of customary ihl was especially subject to criticism in academic discussions.87 Additionally, both the Study and the International Law Commission’s conclusions qualify decisions of international courts and tribunals as subsidiary sources of international law.88 With regard to the concept of a persistent objector, the Study takes ‘no view as to whether it is legally possible to be a “persistent objector”’,89 but its further explanations correspond to conclusion 15, in particular regarding how this concept relates to jus cogens.90 Overall, different from what the Israeli government91 and Marco Sassòli92 observed, the International Law Commission’s conclusions largely coincide with the Study’s methodology. The International Law Commission’s commentary to conclusion 5 deviates from the approach taken by the Study only with regard to the use of practice unknown to other states. The differences between the International Law Commission’s conclusions and the Study concerning the qualification of icrc statements as practice, as well as the relationship of the assessments (of evidence) of the two constituent elements of customary 85

Compare conclusion 11 and the accompanying commentary in unga, Report of the International Law Commission (2018), pp. 143–​6 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xlviii–​l . 86 Compare conclusion 12 and the underlying commentary in unga, Report of the International Law Commission (2018), pp. 147–​9 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, pp. xli–​x lii. 87 See Chapter 2, at 3.1.1. 88 Compare conclusion 13 (1) and the accompanying commentary in unga, Report of the International Law Commission (2018), pp. 149–​50 and Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xl. 89 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xlv. 90 Compare ibid and unga, Report of the International Law Commission (2018), pp. 152–​4. 91 ilc, Protection of the Environment in Relation to Armed Conflicts, Comments and Observations Received from Governments, International Organizations and Others, pp. 102–​3. 92 Sassòli, International Humanitarian Law, para. 4.34 (‘… the ilc has advanced a traditional theory of customary law in its attempt to help States identify customary law that would, if applied to international humanitarian law, certainly put many of the alleged advances into question’).

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international law, do not concern the identification of custom as such, or have no impact in practice. Despite the large overlaps between the final outcome of the International Law Commission’s work and the Study’s methodology, neither the International Law Commission’s conclusions nor its commentary expressly reveal any influence of the Study on the work of the International Law Commission.93 Yet, such an influence can be observed in statements of the Special Rapporteur, Sir Michael Wood, in his academic writings and reports for the International Law Commission, as well as in the discussions within the Commission and responses by states to the Commission. 1.2.2 Discussions within the International Law Commission At the beginning of the International Law Commission’s work on the identification of customary international law, in internal discussions, the Special Rapporteur noted the significance of the experience of other actors to the Commission’s work, citing the Study as an example.94 Some Commission members recommended that the Special Rapporteur review the Study in detail.95 This position was not refuted by other members. Marie Jacobsson recommended that the Special Rapporteur learns from the mistakes made by the International Law Association and icrc. However, Jacobsson did not specify these mistakes.96 1.2.3 State Responses to the International Law Commission In their responses to the International Law Commission, few states opposed those positions found in both the provisionally adopted draft conclusions and the commentary of the International Law Commission and the Study, such as the role of international organisations in the formation of customary international law.97 However, states mostly made no reference to the Study. 93 94 95 96 97

It is noteworthy that the Study is cited in other works of the ilc, so the ilc does not seem to reject the Study per se, see Milanović and Sivakumaran, ‘Assessing the authority of the icrc Customary ihl Study’, 1888–​9. ilc, Summary record of the 3148th meeting, UN Doc a/​c n.4/​3148 (24 July 2012), (2012) unybilc Vol. i, p. 136. See e.g. ilc, Summary record of the 3150th meeting, UN Doc a/​c n.4/​3150 (26 July 2012), (2012) unybilc Vol. i, p. 158 (Mr Hassouna); ilc, Summary record of the 3184th meeting, pp. 95–​6 (Mr. Gómez Robledo). ilc, Summary record of the 3148th meeting, p. 141. See e.g. the reactions to draft conclusion 4 (2) by Belarus, Israel, New Zealand, Singapore and the US in ilc, Identification of customary international law: Comments and observations received from Governments, UN Doc a/​c n.4/​716 (14 February 2018) pp. 13–​23.

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Only the US explicitly invoked much of the earlier criticism of the Study in its response.98 Regarding the forms of practice discussed by the Commission, the US quoted from its initial criticism of the Study –​that military manuals cannot meaningfully replace the assessment of operational practice in connection with military operations –​when suggesting that the commentary to the conclusions should indicate that operational practice ‘is frequently the most probative form of a State’s practice.’99 The same quotation was used to emphasise that official government publications and military manuals commonly only reflect policy and domestic legal considerations, rather than opinio juris.100 Moreover, the US invoked its initial criticism of the Study to question the description of the icrc’s role in the commentary to draft conclusion 4 (3),101 arguing that the practice presented by the Study (and other publications of the icrc) does not accurately reflect the actual practice of states. According to the US, the wording of the commentary to this paragraph could lead to, or promote, this assumption. Based on this criticism, the US recommended that the International Law Commission notes in its commentary that states have expressed concerns with regards to the Study, and to change the commentary to declare that ‘publications of the icrc may [only] assist in identifying relevant practice (although the best approach will be to review a State’s practice directly).’102 Lastly, the letter to the icrc written by Bellinger and Haynes in reaction to the Study was frequently referred to in the US response to the International Law Commission as the US’ point of view on the identification of customary international law. For instance, the letter was cited in pointing out that the 98 See Chapter 2, at 3.3.1. 99 US, ‘Comments from the United States on the International Law Commission’s Draft Conclusion on the Identification of Customary International Law as Adopted by the Commission in 2016 on First Reading’ accessed 31 August 2023, p. 12. 100 Ibid, p. 15. 101 unga, Report of the International Law Commission, Sixty-​eighth session (2 May-​10 June and 4 July-​12 August 2016) UN Doc a/​71/​10 (2016) p. 90 (holding that official statements of the icrc may ‘play an important role in shaping the practice of States reacting to such statements; and publications of icrc may serve as helpful records of relevant practice. Such activities may thus contribute to the development and determination of customary international law’). 102 US, ‘Comments from the United States on the International Law Commission’s Draft Conclusion on the Identification of Customary International Law as Adopted by the Commission in 2016 on First Reading’ accessed 31 August 2023, p. 6.

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practice of specially affected states,103 as well as negative practice, must be given sufficient weight;104 to argue for a high threshold for the ascertainment of state practice and opinio juris,105 especially with regard to inaction;106 and to object to any direct influence by international organisations on the formation of customary international law.107 1.2.4 Academic Works and the Reports of Sir Michael Wood Sir Michael Wood referred to the Study as a useful publication, ‘which contains a wealth of information about the practice by States and other actors in the field’ in his contribution on state practice to the Max Planck Encyclopedia of Public International Law, which was released during the last stage of the International Law Commission’s work on the identification of customary international law.108 In a journal article published shortly after the adoption of the conclusions by the International Law Commission, Wood emphasised that the Commission benefitted greatly from the debate concerning the methodology referred to by the icrc authors. That methodology also has much in common with the methodology set out by the ilc in its draft conclusions.109 By way of example, he noted that both the Commission and the icrc rely on the two-​element approach110 and agree on the primary role of states.111 He explained that customary ihl in general was particularly important for the International Law Commission’s work in relation to various central questions on the formation of customary international law. He described the Study as ‘a catalyst for much thinking about the methodology for determining the rules of customary international law.’112 In his first report for the International Law Commission in 2013, Wood emphasised the Study’s importance in provoking reactions by states and other 1 03 104 105 106 107 108 109

Ibid, p. 14. Ibid, p. 14. Ibid, pp. 1, 6. Ibid, pp. 9–​11. Ibid, pp. 2–​5. M. Wood and O. Sender, ‘State Practice’, mpepil, December 2020, para. 28. Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 729. 110 Ibid. 111 Ibid, 731. 112 Ibid, 735.

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intergovernmental actors, which ‘shed rare light on the attitude of some States to the process of formation and evidence of rules of customary international law.’113 He noted that these reactions revealed states’ preferences for customary international law to be developed from general and consistent state practice and opinio juris, and for the primary role of states.114 In later reports, Wood made reference to reactions by states to the Study, especially to the letter by the US government.115 For instance, he referred to this letter in order to demonstrate that there exists state practice in support of the concept of persistent objector,116 or when reasoning that the practice of states whose interests are specially affected must be duly regarded.117 In addition, in his first report, Wood included the Study when presenting the range of materials on the identification of customary international law to be consulted. He quoted from one of the Study’s authors that the Study is based on the ‘classical two elements approach’. Wood relies on the jurisprudence of the International Court of Justice, in particular on the North Sea Continental Shelf cases, and referred to the discussions raised by the Study, as well as to the icrc’s updating process of the Study, in a partnership with the British Red Cross.118 In 2015, among others, Wood cited the Study in his third report to reason that inaction is a form of state practice,119 to deal with the issue of the Baxter paradox120 and to argue that the practice of international organisations is relevant for the formation of customary international law.121 In addition, he referred to an introduction to the Study in the International Review of the Red Cross to support his assumption that, based on the debates at the codification conference, a treaty may crystallise rules of customary international law.122 In 2016, Wood responded to concerns regarding draft conclusion 4 (3) in his fourth report, which primarily dealt with states’ suggestions on the provisionally adopted draft conclusions. In the opinion of states’ delegations, the

1 13 ilc, First report on formation and evidence of customary international law, para. 52. 114 Ibid. 115 For a detailed analysis of the US response, see Chapter 2, at 3.3.1. 116 ilc, Third report on identification of customary international law by Michael Wood, Special Rapporteur, UN Doc a/​c n.4/​682 (27 March 2015) para. 87. 117 ilc, Second report on identification of customary international law, para. 54. 118 ilc, First report on formation and evidence of customary international law, para. 92. 119 ilc, Third report on identification of customary international law, para. 20. 120 Ibid, para. 41. 121 Ibid, para. 76. 122 Ibid, para. 38 quoting from Henckaerts, ‘A contribution to the understanding and respect for the rule of law in armed conflict’, 183.

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wording of this provision did not adequately consider the relevance of non-​ state actors’ contributions to the formation of customary international law, for which they particularly referred to the icrc.123 On the contrary, Wood explained that the wording of draft conclusion 4 (3) acknowledges the important role of non-​state actors in the identification of customary international law, and that it was the work of icrc and its significant contribution to the development of customary international humanitarian law (by stimulating or recording practice and acceptance as law (opinio juris) by States) that to a large extent inspired the text of paragraph 3.124 Lastly, the Study and several reactions to the Study (including the letter from the US government, as well as Henckaerts’ response to this letter) are listed for customary ihl in the annex to the fourth report, which contains a bibliography on the identification of customary international law.125 Reactions to the Study from academia are also listed for customary international criminal law.126 However, it is noteworthy that on some points the Study was not referred to in the Special Rapporteur’s reports, although the Study addresses the same conclusions and could have further reinforced the Special Rapporteur’s argumentation. For instance, the first report did not refer to the Study when addressing the issue that in ihl it is difficult to identify the actual behaviour of the troops in the field and that, therefore, reliance must primarily be placed on verbal practice.127 Likewise, the second report did not cite the Study when presenting the main forms of state practice, ‘including official manuals on 1 23 ilc, Fourth report on identification of customary international law, para. 21. 124 Ibid. 125 ilc, Fourth report on identification of customary international law, Addendum, Annex ii, pp. 22–​3. See also ilc, Ways and means for making the evidence of customary international law more readily available, para. 34 (referring to the customary ihl database as an example of a collection ‘of national legislation from different States concerning specific fields of international law, often maintained by international organizations’). 126 ilc, Fourth report on identification of customary international law, Addendum, Annex ii, pp. 23–​4. The Special Rapporteur also took these reactions from academia in his reports into account. For example, when discussing the implications of compliance with treaties, he involved Robert Cryer’s reaction to the Study to argue that there are other motives for action than acceptance of a practice as law, see ilc, Second report on identification of customary international law, para. 62 referring to Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 239, 244. 127 ilc, First report on formation and evidence of customary international law, para. 19.

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legal questions (e.g. manuals of military law), executive decisions and practices, orders to military forces (e.g. rules of engagement)’,128 and opinio juris.129 The Special Rapporteur’s reports also did not address the above-​identified inconsistencies between the Study and his own findings, but ignored the Study when discussing the issue of confidential practice,130 and the relationship of the assessments (of evidence) of the two constituent elements of customary international law.131 That the Study was not cited in these instances may be explained by the many other sources that the Special Rapporteur had available as references for his explanations. Moreover, the absence of references to the Study does not mean that it was not considered. There is also the possibility that the Study was in particular not cited where criticism of the International Law Commission’s work was expressed or expected to be expressed by states, especially since criticism of the Study was once more expressed in the US response to the Commission. In addition, it is noticeable that the Study probably also had a further influence on the work of the International Law Commission, which cannot be substantiated with references to the Study in the reports and academic writings of Sir Michael Wood; for instance, regarding the emphasis on a uniform approach to the identification of customary international law for all fields of international law. Several legal scholars observed an autonomisation of the standards to identify customary international law for the field of ihl, especially due to the Study’s impact.132 The Commission, in its commentary to the conclusions, and Sir Michael Wood, in his reports and academic writings, strongly opposed the idea that international law is ‘divided into separate branches with their own approach to sources’ and stressed ‘the unity and coherence of international law, which is a single legal system.’133 The fact that, in some instances,134 this 1 28 129 130 131 132

ilc, Second report on identification of customary international law, paras. 40–​1. Ibid, para. 76. Ibid, para. 47. ilc, Third report on identification of customary international law, para. 15. Cryer, ‘Of Custom, Treaties, Scholars and the Gavel’, 243; J. d’Aspremont, ‘Théorie des Sources’, in R. Steenberghe (ed.), Droit International Humanitaire (Bruylant, 2013), pp. 83–​ 90 and 91–​9; Heinsch, ‘Methodology of Law-​Making’, p. 37. 133 unga, Report of the International Law Commission (2018), p. 126; ilc, First report on formation and evidence of customary international law, para. 19; ilc, Second report on identification of customary international law, para. 48; Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 729. 1 34 ilc, First report on formation and evidence of customary international law, para. 19; Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 729.

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was done with reference to the developments in ihl, suggests that the Study was one of the decisive factors to make the International Law Commission more emphatic on the uniform approach. 1.3 High Impact on the Identification of Customary International Law It is clear from the preceding subsections’ analysis of the Study’s role in the works of legal scholars and the International Law Commission that the Study has influenced the discourse on the identification of customary international law. Thus, it has served as a catalyst to achieve consensus on the methodological underpinnings upon which it relied. In particular, the work of the International Law Commission demonstrates that the icrc succeeds in shaping the structural rules on the identification of customary international law. The references to the Study in the reports and the academic writings of the Special Rapporteur, Sir Michael Wood, suggest that the Study played an important role in the International Law Commission’s work on the identification of customary international law. The discussions within the Commission, as well as the response by the US, support this conclusion. Above all, the Study seems to have reinforced the International Law Commission’s conclusions and led to the inclusion of a provision on the role of non-​state actors –​although some states in their responses to the International Law Commission had protested against this provision.135 At the same time, several of the points made in the US response to the Commission were not adopted by the Commission in the final outcome of its work. These points repeated much of the criticism made towards the Study by the US government in 2006 and aimed toward a strong position for the US in the formation of customary international law. The Study’s methodology has thus prevailed over the view of the US government aiming at a hierarchisation of international law. 2

Interpretation of Treaties

The discussions on the interpretation of international law treaties mainly focus on Articles 31 to 33 vclt. The International Law Association’s Final Report on the impact of findings of the UN human rights treaty bodies from 2004136 and 135 See also the discussion of the states’ responses to the International Law Commission protesting against the consideration of practice of non-​state actors and in particular the icrc, below at Chapter 4, at 4. 136 International Law Association, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies.

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the work of the International Law Commission on subsequent agreements and subsequent practice in relation to interpretation of treaties completed in 2018137 present the only comprehensive examinations of some aspects of the Vienna Convention on the Law of Treaties’ rules on interpretation beyond the vast amount of academic writings.138 This is despite the vagueness of and enduring controversy on the content of Articles 31 to 33. This section primarily addresses the role of the Commentaries in this fragmented discourse on the rules on interpretation. As explained above,139 the Pictet Commentaries were published before the negotiations of the Vienna Convention on the Law of Treaties and lacked a coherent underlying methodology. There is no evidence that the Pictet Commentaries have been considered in the discourse on the interpretation of treaties, including the drafting of the Vienna Convention. Although published after the adoption of the Vienna Convention, and occasionally referring to its rules on interpretation, the same can be observed for the ap Commentary.140 The Guidance, which mentions the Vienna Convention on the Law of Treaties only twice and offers no position on the methodology of treaty interpretation, is unmentioned in chapters on treaty law in international (humanitarian) law textbooks, or other academic works specifically dealing with treaty interpretation, including commentaries on the Vienna Convention. However, in general, most international (humanitarian) law textbooks do not include detailed explanations on treaty interpretation.141 On the other hand, the means of interpretation were discussed in the reactions to the Guidance by legal scholars. Yet, in most cases, the discussion was not generally related to the methodology for the interpretation of treaties, but concerned the meaning of individual sources or the interpretation

1 37 unga, Report of the International Law Commission (2018), pp. 11–​116. 138 In this context, see e.g. a review of six academic writings on the vclt’ rules on interpretation published between 2006 and 2009, M. Waibel, ‘Demystifying the Art of Interpretation’ (2011) 22(2) ejil 571–​88 (concluding, however, at 587 that ‘[t]‌he study of interpretation, despite the rich recent literature, follows an increasingly well-​trodden path.’). 139 See Chapter 2, at 1. 140 In the final outcome of the International Law Commission, the ap Commentary is twice referred to, however, only for an interpretation of Article 12 ap ii and Article 57 ap i, see unga, Report of the International Law Commission (2018), pp. 54 and 56. 141 See e.g. Tsagourias and Morrison, International Humanitarian Law (this textbook does not include a chapter on the sources of international humanitarian law at all); Crawford and Pert, International Humanitarian Law, p. 37 (this textbook provides only a short introduction in treaty ihl without discussing its interpretation).

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of customary international law.142 The Guidance was considered in the International Law Commission’s work on subsequent agreements and subsequent practice. However, it was considered regarding the role of non-​state actors for the assessment of subsequent state practice and not with regard to the methodology of treaty interpretation.143 Special Rapporteur Georg Nolte only once referred to the Guidance regarding the methodology of treaty interpretation. In his first report, he pointed out that the Guidance interprets ihl and not only treaty-​based ihl. He therefore warned that ‘[t]‌he distinction between subsequent practice of States parties pursuant to treaties and pursuant to general customary practice may … be blurred.’144 In sum, it can be inferred that the Guidance has not had much impact on the discourse on the methodology of treaty interpretation. The new Commentaries include an introduction to the methodology of treaty interpretation but have only recently been published. Consequently, it is premature to assess the Commentaries’ impact on the methodology of treaty interpretation based on their inclusion in textbooks and other academic works. On the contrary, it is possible to speculate that the new Commentaries may play a role in the future discourse on treaty interpretation considering the Study’s influence on the methodology on the identification of customary international law,145 that the new Commentaries are a milestone in the interpretation of ihl treaties –​there is no comparable undertaking such as the icrc’s updating process –​and their expected authority.146 In this respect, the International Law Commission’s work on subsequent agreements and subsequent practice provides a first indication, although the first new Commentaries on gc i and gc ii were only published when the Commission’s work on subsequent agreements and subsequent practice came to an end. In the discussions within the International Law Commission, Sir Michael Wood referred to the new Commentary on gc i in order to support his view that pronouncements of expert treaty bodies do not constitute subsequent practice under Article 32 vclt:

142 See e.g. Boothby, ‘And For Such Time As’, 764–​5; van der Toorn, ‘Direct Participation in Hostilities’, 18. 143 See e.g. unga, Report of the International Law Commission (2018), pp. 41–​2. For a discussion of the icrc’s conduct as subsequent practice, see Chapter 4, at 4. 144 ilc, First report on subsequent agreements and subsequent practice in relation to treaty interpretation by Georg Nolte, Special Rapporteur, UN Doc a/​c n.4/​660 (19 March 2013) para. 143. 145 See in this Chapter, at 1. 146 See Chapter 2, at 5.4.

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That was also the point of view of the International Committee of the Red Cross in its 2016 commentary on the First Geneva Convention, which referred to the work of the Commission, specifically draft conclusion 4 (3). The commentary stated that: ‘A subsequent practice that does not fulfil the criteria of [article 31 (3) (b) of the Vienna Convention], i.e. to establish the agreement of the Parties regarding the interpretation of a treaty, may still be relevant as a supplementary means of interpretation under Article 32. This consists of conduct by one or more of the Parties in the application of the treaty after its conclusion. The weight of such practice may depend on its clarity and specificity, as well as its repetition.’147 Wood’s statement raises the question of whether the new Commentaries confirm the outcome of the work of the International Law Commission as the statement implies, and thus potentially reinforce the Commission’s draft conclusion’s authority. This question particularly concerns subsequent practice of states, which plays a major role in the Commentaries’ interpretations whereas subsequent agreements do not.148 The new Commentaries may offer an authoritative additional, or alternative, approach on subsequent practice in relation to interpretation of treaties (of ihl) in instances where they deviate from the Commission’s draft conclusion or elaborate on the methodology where the draft conclusions fall short. In addition, it is of interest how the new Commentaries may influence the (future) understanding of other means of treaty interpretation. In particular, the new Commentaries make use of the relevant rules of international law applicable in the relations between the parties under Article 31 (3) (c) vclt and the preparatory work of the Geneva Conventions and Additional Protocols under Article 32 vclt. The next subsections are guided by the question: How does the new Commentaries’ understanding of these means of interpretation relate to common approaches? Confirmation of the International Law Commission’s Draft Conclusions on Subsequent Practice? For its conclusions on subsequent agreements and subsequent practice, the International Law Commission starts from Articles 31 and 32 vclt, which it classifies as customary international law,149 and emphasises that the

2.1

147 ilc, Provisional summary record of the 3306th meeting, UN Doc a/​c n.4/​s r.3306 (20 March 2017) p. 12. 148 icrc, Commentary on the First Geneva Convention, para. 33. 149 unga, Report of the International Law Commission (2018), p. 17, draft conclusion 2 (1).

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interpretation of a treaty is a single combined operation.150 Draft conclusion 2 (4) stipulates that subsequent practice may not only be taken into account as a means of interpretation under Article 31 (3) (b), but also as a supplementary means of interpretation under Article 32.151 For Article 31 (3) (b), the subsequent practice must establish an agreement between the parties. However, not all parties must actively engage in subsequent practice in order to establish an agreement –​silence may constitute acceptance of the subsequent practice when the circumstances call for some reaction.152 Subsequent practice that does not establish an agreement between the parties as a supplementary means of interpretation under Article 32 consists of conduct by one or more parties,153 which can take various forms.154 However, the International Law Commission emphasises that this conduct has to be in the application of the treaty.155 For subsequent practice that is not ‘in the application of the treaty’, the Commission does not deny that such practice may be used as a supplementary means of interpretation under Article 32, but decided not to deal with it in its work.156 Conduct by non-​state actors generally does not constitute subsequent practice under Articles 31 and 32 vclt.157 Subsequent practice under Article 31 (3) (b) constitutes authentic interpretation of a treaty by all its parties and thus possesses more weight for the purpose of interpretation than subsequent practice under Article 32.158 In general, the weight of subsequent practice depends on factors such as clarity, specificity and repetition.159 Regarding the impact of subsequent practice on the amendment or modification of a treaty, the International Law Commission presumes that parties to a treaty intend to interpret the treaty and asserts that amending or modifying a treaty by subsequent practice has not been generally accepted.160 1 50 151 152 153 154 155 156

Ibid, p. 17, draft conclusion 2 (5). Ibid, p. 17, draft conclusion 2 (4). Ibid, p. 75, draft conclusion 10 (2). Ibid, p. 27, draft conclusion 4, p. 43, draft conclusion 6 (3). Ibid, p. 36–​7. Ibid, p. 27, draft conclusion 4, p. 43, draft conclusion 6 (3). Ibid, p. 21. Less restrictive approaches to Article 32 vclt do not require the state practice to be in the application of the respective treaty, see e.g. O. Dörr, ‘Article 32: Supplementary means of interpretation’, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn. (Springer, 2018), para. 26. 157 See unga, Report of the International Law Commission (2018), p. 37, draft conclusion 5, and p. 106, draft conclusion 13. 158 Ibid, p. 27, draft conclusion 4. 159 Ibid, p. 70, draft conclusion 9. 160 Ibid, p. 51, draft conclusion 7 (3) and p. 63.

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The new Commentaries’ methodology, as laid down in the Commentaries’ introduction, largely corresponds to the final outcome of the International Law Commission.161 Like the Commission’s conclusions, the introduction starts from the vclt’ rules of interpretation, highlighting their customary international law character162 and the premise that the interpretation must combine all the means of interpretation.163 After underlining the importance of subsequent practice under Article 31 (3) (b) when interpreting the Geneva Conventions,164 the introduction explains –​based on the International Law Commission’s provisionally adopted draft conclusions from 2013 –​that conduct by one or more parties in the application of the treaty not fulfilling the criteria of Article 31 (3) (b) may be considered as a supplementary means of interpretation under Article 32.165 Based on the International Law Commission’s provisionally adopted draft conclusions from 2014, the introduction states that the weight of such conduct as subsequent practice under Article 32 may depend on its clarity, specificity and repetition.166 While the methodology as laid down in the new Commentaries’ introduction thus largely corresponds to the International Law Commission’s conclusions, deviations can be observed for the concrete interpretations in the substantial part of the Commentaries. For the interpretations of the Geneva Conventions, the new Commentaries mostly apply state practice as subsidiary means of interpretation under Article 32 vclt.167 The reason behind this is that an agreement of the parties to the Geneva Conventions regarding their interpretation, based on subsequent state practice as required under Article 31 (3) (b), is not easy to establish due to the high number of state parties.168 In this regard, the new Commentaries, inter alia, refer to the Study in order to prove subsequent state practice. For instance, the Commentaries cite the Study as evidence for subsequent practice when arguing that Common Article 3 (2) must be interpreted as a legal obligation to not arbitrarily reject the services 161 As noted in Chapter 2, at 5.4.4, Georg Nolte, Special Rapporteur for the ilc working group on subsequent agreements and subsequent practice in relation to interpretation of treaties, reviewed the new Commentaries’ introduction. 162 icrc, Commentary on the First Geneva Convention, paras. 16–​7. 163 Ibid, para. 18. 164 Ibid, para. 33. 165 Ibid, para. 34. 166 Ibid. 167 Cf. ibid; Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 160. Note, however, that for most interpretations the new Commentaries do not state whether Article 31 (3) (b) or Article 32 vclt applies. 168 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 160.

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offered by relief-​societies.169 The argumentation is not presented by the new Commentaries itself, but in an article on the role of subsequent practice for the new Commentaries’ interpretations. The article was co-​authored by the head of the icrc’s project of the new Commentaries, Jean-​Marie Henckaerts. The argumentation advances that all states are party to the Geneva Conventions and that it can be assumed that states act in the application of the Conventions since the great majority of the Conventions’ rules are part of customary international law.170 This assumption, however, ignores that states seem to distinguish in their conduct between different treaties. This is exemplified by the MoD Manual, which clearly differentiates between Common Article 3 and Additional Protocol ii.171 The DoD Manual even refers to Additional Protocol ii, although not legally bound to it due to a lack of ratification,172 but not to Common Article 3 when explaining the protection of medical and religious personnel and medical transports.173 Accordingly, the new Commentaries’ interpretations potentially rely on state conduct that is not in the application of the Geneva Conventions, as subsequent practice under Article 32 vclt. This approach does not contradict the International Law Commission’s conclusions since the Commission left open the question of the relevance of practice not in the application of a treaty, but it goes beyond the Commission’s conclusions and was applied in the new Commentaries.174 The new Commentaries itself do not state that interpretive decisions by judicial and quasi-​judicial bodies are considered as supplementary means of interpretation in the new Commentaries. However, this is explained in the article co-​authored by Henckaerts on the role of subsequent practice for the new Commentaries’ interpretations.175 This approach contradicts the finding of the 169 icrc, Commentary on the First Geneva Convention, paras. 832–​9. In comparison, the Pictet-​Commentaries interpreted this obligation only as a moral one, see Pictet, Commentary gc i, pp. 57–​8. 170 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 165. 171 In ­chapter 15, the UK Military Manual differentiates between ‘B. All Internal Armed Conflicts’ where it refers to Common article 3 gc and ‘C. Additional Rules in Protocol ii’, see UK Ministry of Defence, MoD Manual. 172 Office of General Counsel Department of Defense, DoD Manual, para. 19.20.2.1 (‘Although the United States is not a Party to ap ii, reviews have concluded that the provisions of ap ii are consistent with the U.S. practice, and that any issue could be addresses with reservations, understandings, and declarations’). 173 Ibid, para. 17.15. 174 Apart from this, it is not understandable why the Study is not taken into account via Article 31 (3) (c) vclt. 175 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 167.

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International Law Commission in conclusion 5 (2) that conduct by non-​state actors generally does not constitute subsequent practice under Articles 31 and 32 vclt.176 Finally, based on the new Commentaries’ interpretations, the same article explains that although the International Law Commission is correct in finding that treaty interpretation cannot lead to a modification of a treaty; in practice, interpretation may generate modifications.177 Furthermore, the distinction between law making, identification of customary international law and treaty interpretation may sometimes not be upheld.178 This contradicts the International Law Commission’s considerations on the relationship between interpreting and amending or modifying a treaty. Relevant Rules of International Law Applicable in the Relations between Parties The new Commentaries frequently refer to treaty law other than the Geneva Conventions. For instance, when arguing that Common Article 3 includes an obligation of non-​refoulement, the new Commentaries refer to the role of human rights treaties and base their argumentation on the comparability of Common Article 3 to those provisions of human rights treaties.179 Other treaties generally referred to are, in particular, the Additional Protocols and international criminal law treaties.180 The introduction to the new Commentaries classifies the use of these treaties and customary international law as a means of interpretation under Article 31 (3) (c) vclt.181 2.2

176 See unga, Report of the International Law Commission (2018), p. 37, draft conclusion 5, and p. 106, draft conclusion 13. 177 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 154. 178 Ibid. 179 icrc, Commentary on the First Geneva Convention, para. 705 (‘The principle of non-​ refoulement is expressed, with some variation in scope, in a number of international legal instruments, including in humanitarian law, refugee law, human rights law, and some extradition treaties’). See also para. 712 (‘The interpretation that common Article 3 would prohibit refoulement is reinforced by the fact that the absolute prohibition of torture, cruel treatment or outrages upon personal dignity in common Article 3 should be interpreted “in light of the parallel provisions in human rights law” … Furthermore, non-​ refoulement has also been found in international jurisprudence and by the UN Human Rights Committee to constitute an integral component of the protection of certain rights –​in particular the right not to be subjected to torture, cruel, inhuman or degrading treatment, or arbitrary deprivation of life –​even when not set down as a separate provision’). For the individual treaties referred to, see fn. 635 and 649. 180 icrc, Commentary on the First Geneva Convention, paras. 35–​45. 181 Ibid.

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This is problematic as Article 31 (3) (c) stipulates that the rules must be ‘applicable in the relations between the parties’, but not all state parties to the Geneva Conventions are parties to the treaties that are taken into account in the new Commentaries’ interpretations. Due to the limited geographical scope of some treaties, especially regional human rights treaties, several state parties to the Geneva Conventions have not even had the possibility to negotiate and become a party to those treaties. The Commentaries’ authors seem to be aware of this problem.182 Based on the International Court of Justice’s Advisory Opinion in South West Africa183 and the International Law Commission’s report on the fragmentation of international law,184 the Commentaries’ introduction notes in a footnote that treaties that are referred to in the Commentaries are used on the understanding that they apply only if all the conditions relating to their geographic, temporal and personal scope of application are fulfilled. In addition, they apply only to States that have ratified or acceded to them.185 In consequence, this leads to different interpretations for the state parties to the Geneva Conventions. It is observed that Article 31 (3) (c) is not consistently interpreted in one way or the other for the jurisprudence of international courts and tribunals.186 However, such a far-​reaching interpretation of Article 31 (3) (c) is generally rejected in academic commentaries. Rather, a restrictive application of Article 31 (3) (c) limited to external treaty rules to which all state parties of the respective treaty are bound is preferred.187 In this regard, reference is made to the definite wording (‘the parties’) and the context of (a restrictive reading of) Article 31 (3) (b), which demands that the subsequent 1 82 Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 161. 183 icj, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 267 (1970), Advisory Opinion, icj Rep 1971, p. 16, para. 53. 184 ilc, Conclusions of the work of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, reproduced in Report of the ilc on the work of its fifty-​eighth session, UN Doc a/​61/​10 (2006) Chapter xii, pp. 413–​5, para. 251, subparagraphs (17)-​(23). 185 icrc, Commentary on the First Geneva Convention, para. 35 (fn. 34). 186 Dörr, ‘Article 31’, para. 104. 187 Ibid, 103; M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers, 2009), p. 433; M. Herdegen, ‘Interpretation in International Law’, mpepil, November 2020, paras. 25–​6. But see D. French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55(2) iclq 281–​314 at 307 (arguing in favour of an extensive interpretation of Article 31 (3) (c) vclt).

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practice must establish an agreement of all parties regarding the meaning of the treaty.188 What can be added to this argumentation is that, as opposed to the modification of treaties,189 the vclt does not expressly foresee the possibility of parallel developments in the interpretation of treaties. Moreover, the International Court of Justice’s Advisory Opinion in South West Africa and the International Law Commission’s report on the fragmentation of international law, on which the new Commentaries rely, do not support an extensive reading of Article 31 (3) (c). First, even if the International Court of Justice was inspired by the preparatory work to the vclt in its Advisory Opinion in 1971, it did not refer to Article 31 (3) (c), which entered into force in 1980. Second, the International Court of Justice did not specify its statement that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’,190 which is cited in the Commentaries.191 In the passage to which the statement belongs, the International Court of Justice interpreted Article 22 of the Covenant of the League of Nations, which was replaced in 1946, and in this context referred to the UN Charter and customary international law. At the time of the Advisory Opinion, almost all former parties to the Covenant of the League of Nations were parties to the Charter of the United Nations.192 This approach reflects the restrictive reading of Article 31 (3) (c) vclt more than the new Commentaries’ expansive reading of this provision. Third, the International Law Commission, in its report on the fragmentation of international law, does not express the opinion that external treaty rules may be referred to under Article 31 (3) (c) if not all state parties to the respective treaty are bound by those rules. Instead, the Commission mostly discusses the application of customary international law and general principles of law under Article 31 (3) (c). In fact, the Commission states that Article 31 (3) (c) ‘also requires the interpreter to consider other treaty-​based rules so as to arrive at a consistent meaning. Such other rules are of particular relevance where

188 Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, p. 433; Dörr, ‘Article 31’, para. 103; Herdegen, ‘Interpretation in International Law’, paras. 25–​6. 189 Cf. Article 41 (1) vclt. 190 icj, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 267 (1970), Advisory Opinion, icj Rep 1971, p. 16, para. 53. 191 icrc, Commentary on the First Geneva Convention, para. 35. 192 Exceptions were Switzerland, Germany (which had an observer status) and the Baltic States.

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parties to the treaty under interpretation are also parties to the other treaty.’193 The report on fragmentation of international law demands a homogenous application of rules of international law. The new Commentaries’ reading of Article 31 (3) (c) would, on the contrary, lead to diverse interpretations. In sum, the new Commentaries rely on an expansive reading of Article 31 (3) (c) vclt, which allows the icrc to interpret the Geneva Conventions and Additional Protocols widely. However, this view has so far been predominantly opposed in academia and finds scant support in legal practice. 2.3 Preparatory Work According to Article 32 vclt, recourse may be had to the preparatory work of a treaty to confirm the meaning resulting from the application of Article 31 vclt, or to determine the meaning when the application of Article 31 leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. Nevertheless, based on academic commentaries, in its new Commentaries, the icrc assumes that recourse to the preparatory work is not optional, as stipulated in Article 32, but ‘a matter of standard research’.194 Regarding the question of what constitutes preparatory work, neither the vclt itself nor international law in general provide a definition. In its commentary on the draft articles on the law of treaties of 1966, the International Law Commission expressly refrained from defining preparatory work stating that ‘to do so might only lead to the possible exclusion of relevant evidence.’195 In general, there is not much academic debate on what constitutes preparatory work.196 Some argue that preparatory work includes ‘all the written documents that were produced in the process leading up to the conclusion of a treaty’,197 which corresponds to the observation that international courts and tribunals refer to a wide range of documents as preparatory work.198 Others closely relate the preparatory work to the historical will of the contracting parties199 193 ilc, Conclusions of the work of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, pp. 414–​5, para. 251, subparagraph (21). 194 icrc, Commentary on the First Geneva Convention, para. 48. 195 ilc, Draft Articles on the Law of Treaties with commentaries, (1966) unybilc Vol. ii, p. 223. 196 Note, e.g., that there is no entry on preparatory work in the Max Planck Encyclopedia of International Law. The entry on treaty interpretation hardly discusses the relevance of preparatory work, cf. Herdegen, ‘Interpretation in International Law’, para. 16. 197 M. M. Mbengue, ‘Rules of Interpretation (Article 32 of the Vienna Convention on the Law of Treaties)’ (2016) 31(2) icsid Review 388–​412 at 389. 198 R. K. Gardiner, Treaty Interpretation, 2nd edn. (oup, 2015), p. 112. 199 Cf. Herdegen, ‘Interpretation in International Law’, para. 16; Dörr, ‘Article 32’, para. 11.

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and allow only documents which were ‘generated by the negotiating states during the preparation of the treaty up to its conclusion’.200 The new Commentaries follow the approach of applying a broad understanding of preparatory work.201 The table of sources, which includes a list of the preparatory work on which the new Commentaries rely,202 shows, for instance, draft conventions of the icrc, the icrc Commentary on the draft additional protocols and documents of the 1946 Preliminary Conference of National Red Cross Societies203 –​thus documents that were not generated by the negotiating parties. Applying such a broad understanding of preparatory work allows for recourse to outputs by non-​state actors. In the case of the new Commentaries, this means recourse to outputs by the icrc and National Red Cross and Red Crescent Societies. Bearing in mind that preparatory work can play a significant role in the interpretation of a legal provision depending on the understanding of the legal rule that applies to the use of such materials,204 the potential effect of using such documents in the new Commentaries’ interpretations of the Geneva Conventions is significant. However, this broad understanding of what constitutes preparatory work under Article 32 vclt contradicts, in principle, the International Law Commission’s considerations on the role of non-​state actors in its conclusions on the identification of customary international law, as well as its conclusion on subsequent agreements and subsequent practice in relation to interpretation of treaties. 2.4 Possible Impact on the Interpretation of Treaties In sum, the analysis of the role of the Guidance and the Commentaries for the methodology of treaty interpretation reveals that the Guidance, the Pictet Commentaries and the ap Commentary hardly had any influence. In contrast, the new Commentaries may play a future role for the methodology of treaty interpretation.

2 00 201 202 203

Dörr, ‘Article 32’, para. 13. Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 163. icrc, Commentary on the First Geneva Convention, para. 50. icrc, Commentary on the Second Geneva Convention, Sources; Hakimi, ‘Custom’s Method and Process’. 204 See the empirical study by Y. Shereshevsky and T. Noah, ‘Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts’ (2017) 28(4) ejil 1287–​316.

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Regarding the use of subsequent practice, the Commentaries’ methodology as laid down in their introduction largely confirms the International Law Commission’s conclusions and thus probably supports their authority especially for the interpretation of treaty-​based ihl. The new Commentaries demonstrate the conclusions’ applicability for the interpretation of the Geneva Conventions and Additional Protocols. However, in their substantial parts, the new Commentaries go beyond the International Law Commission’s conclusions when relying on the Study as evidence for subsequent practice; and thus potentially including states’ conduct not in the application of the Geneva Conventions under Article 32 vclt. Moreover, the new Commentaries contradict the International Law Commission’s conclusions regarding the use of pronouncements of judicial and quasi-​judicial bodies as supplementary means of interpretation and the question of whether subsequent practice may lead to treaty amendments or modifications. However, these deviations do not follow from the new Commentaries’ introduction to the methodology itself, but only from the interpretations and the academic article co-​authored by Jean-​Marie Henckaerts. It thus cannot be expected that the new Commentaries re-​shape the discourse in relation to the use of practice not in the application of a treaty, the use of judicial and quasi-​judicial bodies, or the role of subsequent practice for amending or modifying a treaty. Yet, the deviations imply that some of the new Commentaries’ interpretations do not comply with the standards for treaty interpretation. They shape the meaning of the Geneva Conventions and Additional Protocols contrary to the will of states, who distinguish in their conduct between different treaties, and on the basis of non-​state actors’ practice, which was opposed by several states in their responses to the International Law Commission.205 Regarding the use of the relevant rules of international law under Article 31 (3) (c) and preparatory work under Article 32 vclt, the new Commentaries’ methodology includes an expansive understanding that differs from the common, rather restrictive, view found in academic works and in the International Law Commission’s considerations. Here, the new Commentaries may impact the interpretation of Articles 31 (3) (c) and 32 vclt, thus allowing for the possibility of parallel developments in the interpretation of treaties and giving influence to non-​state actors who actively participate in treaty negotiations. This impact might, however, be limited to ihl.

205 For states’ responses, see Chapter 4, at 4.

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275

Tendencies of Specialisation and Merging of the Sources of International Humanitarian Law

The analysis of the impact of the icrc’s Commentaries, the Guidance and the Study on the secondary rules of international law evidence two tendencies: It shows the specialisation of the sources of ihl from international law and the merging of the sources of ihl. Implications for Specialisation of the Sources of International Humanitarian Law Regarding tendencies of specialisation, the analysis of the Study’s impact on the identification of customary international law revealed that the Study contributed to the development of the methodology to identify customary international law that was somewhat limited to ihl in the beginning. This is evidenced by the higher number of references to the Study as a basis for explaining the methodology for the identification of customary international law in ihl textbooks when compared to international law textbooks.206 The same can be observed when comparing other academic works on customary ihl on the one hand, and customary international law in general on the other.207 A case in point is Monica Hakimi’s article titled ‘Custom’s Method and Process: Lessons from Humanitarian Law’, which contends that due to the Study’s contribution, the formation of customary ihl developed beyond the formation of customary general international law.208 Against this background, the International Law Commission, in its work on the identification of customary international law, and Special Rapporteur Sir Michael Wood, in his reports and academic writings, repeatedly warned against the idea that international law is ‘divided into separate branches with their own approach to sources’ and stressed ‘the unity and coherence of international law, which is a single legal system’,209 as noted earlier.210 The International Law Commission’s conclusions on the identification of customary law do not significantly deviate from the Study’s methodology, but push the discourse on identification of customary international

3.1

2 06 207 208 209

See in this Chapter, at 1.1. Cf. above note 47. Hakimi, ‘Custom’s Method and Process’, p. 168. unga, Report of the International Law Commission (2018), p. 126; ilc, First report on formation and evidence of customary international law, para. 19; ilc, Second report on identification of customary international law, para. 48; Wood, ‘The Evolution and Identification of the Customary International Law of Armed Conflict’, 729. 210 See in this chapter, at Academic works and the reports of Sir Michael Wood

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law further towards the Study’s methodology. These conclusions are regarded as authoritative on this topic and thus stop the specialisation observed for the methodology in the identification of customary international law. For the new Commentaries, this chapter’s analysis showed that they apply an expansive understanding of the means of interpretation under Article 31 (3) (c) (relevant rules of international law) and Article 32 (preparatory work as well as subsequent practice) vclt in their interpretations of the Geneva Conventions. In doing so, they deviate from common views in academia and deviate from, or go beyond, the International Law Commission’s recent work on subsequent agreements and subsequent practice. Having the Study’s impact on the identification of customary ihl in mind, it is conceivable that the new Commentaries similarly initiate a development in the methodology of treaty interpretation limited to ihl, which could lead to (a further)211 specialisation in the methodology of treaty interpretation in international law. However, while the new Commentaries’ introduction explicitly presents an expansive reading of ‘relevant rules of international law’ and ‘preparatory work’, the considerations for the extensive application of subsequent practice underlying the Commentaries are only presented in an academic article. Hence, the initiation of a separate development of treaty interpretation in ihl is less likely for the extensive application of subsequent practice. Lastly, it was observed that the understanding of relevant rules of international law under Article 31 (3) (c) vclt applied in the new Commentaries –​which includes external treaties not binding all parties to the Geneva Conventions or Additional Protocols –​could lead to diverse interpretations of the Geneva Conventions’ and Additional Protocols’ rules. In theory, this would result in the specialisation (of interpretations) of the Geneva Conventions and Additional Protocols. However, it is questionable whether this development would really occur in practice. When referring to external treaty rules, the new Commentaries do not differentiate their interpretation according to the (non-​)application of external treaty rules. Accordingly, the user of the Commentaries would have to, first examine whether an interpretation is based on external treaty rules and, second, to decide whether those external treaty rules apply in the concrete situation to the state parties concerned. Following the logic of the new Commentaries, if the state parties concerned are not parties to the external treaty rules, the user 211 The field of interpretation is one of the areas where it is difficult to defend that it was ever non-​fragmented. For an analyses of whether the rules of treaty interpretation have any ‘cash value’ despite their much-​discussed shortcomings, see F. Zarbiyev, ‘The “cash value” of the rules of treaty interpretation’ (2019) 32(1) ljil 33–​45.

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would have to reject or modify the Commentaries’ interpretations. Yet, it is more probable that the user would accept the Commentaries’ interpretations without examining the application of the external treaty rules referred to in the footnotes. Consequently, the Commentaries’ understanding of relevant rules of international law under Article 31 (3) (c) vclt will probably not lead to a specialisation of interpretations of the Geneva Conventions and Additional Protocols. On the contrary, the extensive application of Article 31 (3) (c) may prevent the development of non-​uniform standards in armed conflict and contribute to a harmonisation of the Geneva Conventions and Additional Protocols with international law.212 In general, the new Commentaries can be seen as an attempt to prevent a specialisation of interpretations of the Geneva Conventions and Additional Protocols caused by the many different interpretations of states, international courts and tribunals, and expert processes, among others. The Commentaries bring these different interpretations together and discuss their (dis-​ ) advantages. Implications for Merging of the Sources of International Humanitarian Law Regarding tendencies to merge the sources of ihl, the Study, together with the jurisprudence of the icty and the ictr,213 has been particularly instrumental in bringing customary ihl in line with treaty-​based ihl. The Study claims that customary ihl for both international and non-​international armed conflicts resemble treaty law for international armed conflicts. It extensively uses treaty-​based ihl as evidence for state practice and opinio juris and formulates the Rules of customary ihl similarly to their counterparts in treaty-​based ihl. After initial criticism, this claim has become widely accepted.214 In the 1990s, legal scholars still widely presumed that customary ihl only mirrors the most basic provisions of treaty-​based ihl.215 Today, however, it is widely accepted 3.2

212 Cf. C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54(2) iclq 279–​320. 213 For an analysis of the impact of the jurisprudence of the icty and the ictr, see e.g. Meron, ‘Revival of Customary Humanitarian Law’, 821–​32; E. Crawford, ‘Blurring the Lines between International and Non-​International Armed Conflicts: The Evolution of Customary International Law Applicable in Internal Armed Conflicts’ (2008) 15 Australian International Law Journal 29–​54 at 38–​48. 214 For the acceptance of the Study, see Chapter 2, at 3.2 and 3.3.3. See also Hakimi, ‘Custom’s Method and Process’, p. 161; S. Sivakumaran, The Law of Non-​International Armed Conflict (oup, 2012), pp. 56–​7 and 61. 215 Hakimi, ‘Custom’s Method and Process’, p. 154.

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that customary ihl reflects, and even exceeds the scope of, treaty-​based ihl –​ especially with regard to the law of non-​international armed conflict.216 Attention must also be drawn to the warning of International Law Commission’s Special Rapporteur Georg Nolte in his first report on subsequent agreements and subsequent practice, stating in relation to the Guidance that ‘[t]‌he distinction between subsequent practice of States parties pursuant to treaties and pursuant to general customary practice may … be blurred.’217 Indeed, the Guidance hardly differentiates between customary and treaty-​ based ihl, especially when taking state practice into account. References to the Guidance by states218 may transform the Guidance’s positions into state practice and thus perpetuate the blurring of the line between customary and treaty-​based ihl as this practice can be again used for interpretations of treaty-​based ihl or the identification of customary ihl. This said, the icrc includes state practice that refers to the Guidance in its ihl database.219 The new Commentaries also refer to the Guidance, for instance in the interpretation of Common Article 3.220 Their use may further perpetuate the blurring of the line between customary and treaty-​based ihl. The Special Rapporteur’s considerations regarding the Guidance also apply to the new Commentaries’ usage of the Study as evidence for subsequent practice under Article 31 (3) (b) and Article 32 vclt. The Commentaries’ practice may blur the distinction between subsequent practice of parties pursuant to the Geneva Conventions and pursuant to customary ihl, therefore, further contributing to the merging of customary and treaty-​based ihl. Lastly, the expansive understanding of Article 31 (3) (c) vclt underlying the Commentaries may blur the lines between the Geneva Conventions and the Additional Protocols when using the Protocols for the interpretation of the Conventions, despite the fact that not all parties to the Conventions are parties to the Protocols.

2 16 Ibid. 217 ilc, First report on subsequent agreements and subsequent practice, para. 143. 218 For states’ references to the Guidance, see Chapter 2, at 4.3. 219 Cf. the state practice listed for Rule 6 in icrc, ‘Customary ihl Database’ accessed 31 August 2023. 220 icrc, Commentary on the First Geneva Convention, paras. 462–​3 and 521–​34.

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279

Conclusion: A New Role for the icrc

This chapter has shown that the icrc through its outputs shapes the structural rules of international law regarding the formation of customary international law and, arguably, also with regard to the interpretation of treaties. This is a new role for the icrc, which it has only assumed since the publication of the Study. Previous publications such as the Pictet Commentaries and the ap Commentary have not influenced the structural rules of international law. The reason for this is possibly that the methodology only gained importance after the publication of the first edition of the icrc Commentaries. Regarding the icrc’s concrete influence on the structural rules, it is particularly striking that the icrc brings about the inclusion of non-​state actors in the formal law-​making processes. The icrc advocates the relevance of non-​ state actors’ practice for the formation of customary international law and the interpretation of treaties. Because of the icrc’s impact on customary ihl, the International Law Commission adopted a rule on the use of practices by non-​ state actors. Furthermore, the icrc argues that legal views of non-​state actors submitted at preparatory conferences can be used as travaux préparatoires for the interpretation of treaties. Moreover, the analysis of the icrc’s impact on the structural rules on the formation of customary international law indicates that the icrc has contributed to preventing a special position for dominant states –​which the US has especially sought to attain. This chapter has shown that the icrc, through its interpretations and law-​ ascertainments, influences the structural rules of international law and thus, inter alia, contributes to a more pluralistic international law. The next chapter discusses how international law governs the use of the icrc’s interpretations and law-​ascertainments.

­c hapter 4

Legal Classification of the icrc’s Interpretations and Law-​Ascertainments under the Sources of Law Doctrine and the Means of Interpretation The de facto authority of the Commentaries, the Study and the Guidance raises the question of how they can be used in the identification of international law and interpretation of treaties. This question is all the more pertinent as the legal status of the icrc’s interpretations and law-​ascertainments have been subject to ambiguities in legal practice and academia. Such ambiguities find expression in descriptions of the icrc’s publications as important sources,1 authoritative,2 and in the case of the first edition of the Commentaries, as official or accompanying.3 Different and even contrary categorisations of the icrc’s interpretations and law-​ ascertainments under rules of international law indicate a need for a clarification of their legal classification.4 For instance, in Serdar Mohammed, the British Court of Appeal classified the icrc’s publications as subsidiary means for the determination of rules of international law under Article 38 (1) (d) icj Statute.5 Carsten Stahn and Ian Henderson, however, concluded that the icrc’s publications are not subsidiary means under Article 38 (1) (d),6 but then classified

1 G. Kemp, ‘International Humanitarian Law’, in H. Strydom (ed.), International Law (oup, 2016), pp. 373–​4. 2 See Chapter 2, at 1.1.4, 2.1.6 and 3.2. 3 See Chapter 2, at 1.1.4 and 2.1.6. 4 See also in this regard ilc, First report on responsibility of international organizations by Giorgio Gaja, Special Rapporteur, UN Doc a/​c n.4/​532 (26 March 2003), para. 21 (fn. 58) (addressing but not answering the question of whether the icrc exercises governmental functions); Murphy, ‘Episode i, Part ii’ (predicting with regard to the new Commentaries that ‘[t]‌he precise status of the icrc commentaries for international law will no doubt be addressed in particular contexts, perhaps even in litigation before international or national courts, and certainly in scholarly commentary’). 5 Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 para. 171. See also Murphy, ‘Episode i, Part ii’; Kleffner, ‘Sources of the law of armed conflict’, p. 84. 6 Stahn, ‘The icrc and the Development of International Criminal Law’, 161; Henderson, ‘Status of the icrc Commentaries’ (with regard to the Commentaries only).

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_006

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the Commentaries as supplementary means of interpretation under Article 32 vclt.7 This position in turn was rejected by Andreas Zimmermann and Robin Geiss.8 International Law Commission member Kriangsak Kittichaisaree even proposed to consider the Guidance as a special meaning in accordance with Article 31 (4) vclt.9 Taking into account the latest developments in legal doctrine, this chapter investigates whether international law regulates the usage of the icrc’s interpretations and law-​ascertainments when determining what ihl is. An international law rule that stipulates the usage of the icrc’s interpretations and law-​ascertainments may contribute to the legitimation of their authority, since international law is not only ‘a medium through which powerful actors exercise authority’, but also ‘a medium that can be used to justify authority’.10 Therefore, this chapter analyses whether the icrc’s interpretations and law-​ ascertainments fall under Article 38 (1) (b),11 (d)12 icj Statute, Articles 31 and 32 vclt13 and the Martens Clause.

7 8 9 10 11

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Stahn, ‘The International Committee of the Red Cross and the Development of International Criminal Law’, p. 207; Henderson, ‘Status of the icrc Commentaries’. See also ilc, Summary record of the 3162nd meeting, p. 12. Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 241–​2. ilc, Summary record of the 3162nd meeting, p. 12 (statement by Mr. Kittichaisaree). Venzke, How interpretation makes international law, p. 224. Article 38 (1) (b) icj Statute forms the general basis for the discussion on the formation of customary international law, ‘as evidence of general practice accepted by law’, see e.g. G. M. Danilenko, Law Making in the International Community (Martinus Nijhoff Publishers, 1993), pp. 33–​6; T. Skouteris, ‘The force of a doctrine: art. 38 of the pcij Statute and the sources of international law’, in F. Johns, R. J. Joyce and S. Pahuja (eds.), Events (Routledge, 2011), pp. 71–​4. Article 38 (1) (d) Statute of International Court of Justice forms the general basis for the discussion on the use of supplementary means for determining the legal rules from the legal sources of international law reflected in Article 38 (1) (a)-​(c), see e.g. icty, Prosecutor v Kupreskic et al. (Judgment) Case No it-​95-​16-​T (14 January 2000) para. 540; M. Fitzmaurice, ‘The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present’, in S. Besson and J. d’Aspremont (eds.), The Oxford handbook of the sources of international law (oup, 2017), p. 182; Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 511 (with further references). Articles 31 and 32 vclt reflect customary international law, see e.g. unga, Report of the International Law Commission (2018), p. 17; K. Schmalenbach, ‘Article 4: Non-​retroactivity of the present Convention’, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn. (Springer, 2018), para. 6.

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No Practice under Article 38 (1) (b) of the Statute of the International Court of Justice

The genesis of Article 38 (1) (b) icj Statute sheds little light on the question of whose practice may (not) contribute to the formation of customary international law.14 Notably, the wording does not require that the practice stems from states only.15 It is thus principally open for the icrc’s practice, including its interpretations and law-​ascertainments. However, it is widely held that the practice of non-​state actors plays only a limited role in the discussions on the formation of customary international law. This prevalent belief does not lend support for including the icrc’s interpretations and law-​ascertainments under Article 38 (1) (b) icj Statute. Most recently, the International Law Commission emphasised that it is primarily state practice that forms customary international law.16 Only the practice of international organisations –​‘organizations that are established by instruments governed by international law (usually treaties), and possess their own international legal personality. The term does not include non-​governmental organizations’17 –​may ‘in certain cases’ also contribute ‘to the formation, or expression, of rules of customary international law.’18 Furthermore, ‘[c]‌onduct of other actors is not practice that contributes to the formation, or expression, of rules of customary international law; but may be relevant when assessing the practice’ of states and international organisations.19 In the commentary to the draft conclusions, the International Law Commission dealt with the icrc’s role and stated that statements of the icrc … may likewise play an important role in shaping the practice of States reacting to such statements; and publications of the

14

15 16 17 18 19

For more detailed information on the genesis of Article 38 (1) (b) icj Statute, see e.g. ilc, First report on formation and evidence of customary international law, para. 30 (with further references); O. Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in S. Besson and J. d’Aspremont (eds.), The Oxford handbook of the sources of international law (oup, 2017), p. 170; Fitzmaurice, ‘The History of Article 38’, 181–​2. J. P. Bohoslavsky, Y. Li and M. Sudreau, ‘Emerging customary international law in sovereign debt governance?’ (2014) 9(1) Capital Markets Law Journal 55–​72 at 63. unga, Report of the International Law Commission (2018), p. 130, draft conclusion 4 (1). See also ilc, Second report on identification of customary international law, para. 33. unga, Report of the International Law Commission (2018), p. 130 (fn. 691). Ibid, draft conclusion 4 (2). Ibid, draft conclusion 4 (3).

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icrc may assist in identifying relevant practice. Such activities may thus contribute to the development and determination of customary international law, but they are not practice as such.20 These conclusions of the Commission reflect a broad consensus in state practice and academia. States generally oppose a direct role for non-​state actors in the formation of customary international law.21 For instance, in their comments to the International Law Commission’s draft conclusions on identification of customary law, several states argued for a restrictive approach towards the practice of non-​state actors including the practice of international organisations.22 In this context, explicit reference to the role of the icrc was made.23 Notably, Switzerland argued that the icrc’s practice may solely constitute a source, but not an element, of identification.24

20 21 22

23

24

Ibid, p. 132 (stating in fn. 698, however, that ‘[t]‌his is without prejudice to the significance of acts of the icrc in exercise of specific functions conferred upon it, in particular by the Geneva Conventions for the protection of war victims of 12 August 1949’). See in this regard also the US government’s criticism of the Study’s consideration of practice of the icrc and other non-​state actors, Bellinger and Haynes, ‘A US government response’, 445. See e.g. US, ‘Comments from the United States on the International Law Commission’s Draft Conclusions on the Identification of Customary International Law as Adopted by the Commission in 2016 on First Reading’ accessed 31 August 2023, pp. 2–​5; New Zealand, ‘Comments by the Government of New Zealand’, 21 December 2017 accessed 31 August 2023, para. 9; Singapore, ‘Response of the Republic of Singapore to the International Law Commission’s Request for Comments and Observations on the Draft Conclusion on Identification of Customary Law’ accessed 31 August 2023, paras. 5–​7 and 8; Belarus, ‘Выявление международного обычного права’, 2018 accessed 31 August 2023, pp. 2–​4. See also the discussion of states’ comments to the International Law Commission, discussed in ilc, Fourth report on identification of customary international law, para. 21. See e.g. Singapore, ‘Response of the Republic of Singapore to the International Law Commission’s Request for Comments and Observations on the Draft Conclusion on Identification of Customary Law’ accessed 31 August 2023, paras. 5–​7 and 8. Switzerland, ‘La pratique suisse relative à la détermination du droit international coutumier’ accessed 31 August 2034, pp. 37–​8 (‘Les différents extraits analysés semblent toutefois suggérer que les actes du cicr, dans la mesure où ils permettent de clarifier le contenu du droit international coutumier, sont davantage considérés par les

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The focus is usually only on international organisations or non-​state armed groups in academic writings that endorse the relevance of the practice of actors other than states in the formation of customary international law.25 In general, it is held that the practice of ngo s does not contribute to the formation of customary international law.26 In this regard, the icrc is rarely considered as an exception.27 Yet, also in the discussions within the International Law Commission, some members pointed out that the practice of the icrc could play a role in the formation of customary international law,28 and even

25

26

27

28

autorités suisses comme des sources d’identification que comme un élément d’identification proprement dit des éléments constitutifs du droit international coutumier.’). See e.g. Wood, ‘International Organizations and Customary International Law’, 618; J. Klabbers, ‘International Organizations in the Formation of Customary International Law’, in E. Cannizzaro and P. Palchetti (eds.), Customary International Law on the Use of Force (Martinus Nijhoff Publishers, 2005); M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 Journal of International Humanitarian Legal Studies 5–​51 at 20–​6; A. Kleczkowska, ‘Armed Non-​State Actors and Customary International Law’, in J. Summers and A. Gough (eds.), Non-​State Actors and International Obligations (brill, 2018), pp. 67–​78. See e.g. G. J. H. van Hoof, Rethinking the Sources of International Law (Kluwer Law and Taxation Publishers, 1983), p. 63; International Law Association, Second Report of the Committee Non-​State Actors in International Law: Lawmaking and Participation Rights (2012), p. 6. See also Roberts and Sivakumaran, ‘Lawmaking by Nonstate Actors’, 118 (although Sivakumaran, in a later publication, categorises the icrc as state empowered entity, see Sivakumaran, ‘Beyond States and Non-​State Actors’, 346–​7. But see in this regard the criticism of Sivakumaran’s categorisation in Chapter 1, at 2.2.3). For contributions specifically dealing with the icrc, see T. Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’ (1996) 90(2) ajil 238–​49 at 245. See also Murphy, ‘Episode i, Part ii’. See e.g. Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law, pp. 120–​ 1; Henckaerts and Doswald-​ Beck, Customary International Humanitarian Law: Volume i, p. xli (in his response to the US government, Henckaerts, however, watered down the Study’s use of the icrc’s practice, see Henckaerts, ‘A Response to US Comments’, 478). ilc, Provisional summary record of the 3226th meeting, UN Doc a/​c n.4/​s r.3226 (19 September 2014) p. 12 (statement by Mr. Saboia); ilc, Provisional summary record of the 3251st meeting, UN Doc a/​c n.4/​s r.3251 (9 June 2015) p. 6 (statement by Mr. Forteau); ilc, Provisional summary record of the 3252nd meeting, UN Doc a/​c n.4/​s r.3252 (12 April 2016) p. 8 (statement by Mr. Caflish); ilc, Provisional summary record of the 3252nd meeting, p. 13 (statement by Mr. Sturma); ilc, Provisional summary record of the 3254th meeting, pp. 3–​4 (statement by Ms. Jacobsson). For a general overview of the discussion, see ilc, Identification of customary international law: Statement of the Chairman of the Drafting Committee, Mr. Gilberto Saboia (7 August 2014) p. 9 (stating, however, that ‘several other members stressed that the practice of non-​State actors other than international organizations was not relevant in this context. The Drafting Committee considered it preferable not to address this question in the conclusion itself, as there was widespread

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proposed a consideration of the icrc’s practice in the draft conclusions.29 However, none of the members provided any legal explanation as to why the icrc’s practice should be considered for the formation of customary international law.30 The few legal scholars that argue in favour of a role for the icrc’s practice in the formation of customary international law point to the icrc’s mandates under the Statutes of the Movement, a statement by the icty Appeals Chamber and the legal personality of the icrc, in particular.31 The arguments based on these points, however, are not convincing for the following reasons. As it was shown above,32 the Statutes of the movement do not confer competences on the icrc. The icty Appeals Chamber in Tadić remained ambiguous on the role of the icrc’s practice for the formation of customary international law when making the following statement: As is well known, icrc has been very active in promoting the development, implementation and dissemination of international humanitarian law. From the angle that is of relevance to us, namely the emergence of customary rules on internal armed conflict, icrc has made a remarkable contribution by appealing to the parties to armed conflicts to respect international humanitarian law. It is notable that, when confronted with non-​international armed conflicts, icrc has promoted the application by the contending parties of the basic principles of humanitarian law. In addition, whenever possible, it has endeavoured to persuade the conflicting parties to abide by the Geneva Conventions of 1949 or at least by their principal provisions. When the parties, or one of them, have refused to comply with the bulk of international humanitarian law, icrc has stated agreement that the practice of non-​State actors generally was not directly relevant to the formation of customary international law.’); ilc, Identification of customary international law: Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau (29 July 2015) pp. 5–​6. 29 ilc, Provisional summary record of the 3252nd meeting, p. 13 (statement by Mr. Saboia). 30 Others only highlighted the important functions of the icrc and other non-​state actors, but held that their practice may not play a direct role for the formation of customary international law only, see e.g. ilc, Provisional summary record of the 3253rd meeting, UN Doc a/​c n.4/​s r.3253 (15 July 2015), p. 4 (statement by Mr. McRae) and p. 7 (statement by Mr. Nolte); ilc, Provisional summary record of the 3280th meeting, UN Doc a/​c n.4/​ sr.3280 (22 September 2015) p. 8 (statement by Mr. Forteau). 31 Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law, pp. 120–​1; Henckaerts and Doswald-​Beck, Customary International Humanitarian Law: Volume i, p. xli. 32 See Chapter 1, at 2.2.

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that they should respect, as a minimum, common article 3. This shows that icrc has promoted and facilitated the extension of general principles of humanitarian law to internal armed conflict. The practical results icrc has thus achieved in inducing compliance with international humanitarian law ought therefore to be regarded as an element of actual international practice; this is an element that has been conspicuously instrumental in the emergence or crystallization of customary rules.33 The emphasis on the ‘practical results’ indicates that the Appeals Chamber did not assume that the icrc’s practice counts for the formation of customary international law as such, but only through its influence on states.34 Lastly, the reliance on the (alleged) legal personality of the icrc to argue for the relevance of its practice in the formation of customary international law finds no basis in legal doctrine. Academic writings endorsing the relevance of international organisations’ or non-​state armed groups’ practice, typically focus on the need for compliance with ihl and human rights law by armed groups,35 or the fact that international organisations are established and empowered by law.36 Likewise, the International Law Commission claims that practice of international organisations contributes to the formation of customary international law only where member states have transferred exclusive competences to the international organization, so that the latter exercises some of the public powers of its member States and hence the practice of the organization may be equated with the practice of those States [or] conferred competences upon the international organization that are functionally equivalent to powers exercised by States.37 In addition, the International Law Commission limits the contribution of international organisations to the formation of customary international law to 33

icty, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case No it-​94-​1, icty Appeals Chamber (2 October 1995) para. 109. 34 See also Geiss and Zimmermann, ‘The International Committee of the Red Cross’, pp. 235–​ 7; Gazzini, ‘A unique non-​State actor’, 44–​5. 35 See e.g. Sassòli, International Humanitarian Law, paras. 4.41–​ 4.44; S. Rondeau, ‘Participation of armed groups in the development of the law applicable to armed conflicts’ (2011) 93(883) irrc 649–​72 at 652–​7. 36 See e.g. Wood, ‘International Organizations and Customary International Law’, 618; Treves, ‘Customary International Law’, para. 52. 37 unga, Report of the International Law Commission (2018), pp. 130–​1.

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‘those rules (a) whose subject matter falls within the mandate of the organizations, and/​or (b) that are addressed specifically to them’.38 To conclude, the icrc’s interpretations and law-​ascertainments do not constitute practice in the meaning of Article 38 (1) (b) icj Statute and, thus, do not contribute to the formation of customary international law. 2

Subsidiary Means for the Determination of Rules of Law under Article 38 (1) (d) of the Statute of the International Court of Justice

A use of the icrc’s interpretations and law-​ascertainments under Article 38 (1) (d) icj Statute does not only presuppose that they meet the rather unorthodox description of ‘teachings of the most qualified publicists of the various nations’, but also raises the question of whether the ‘determination of rules of law’ includes the act of interpretation. 2.1 Teachings of the Most Qualified Publicists of the Various Nations It is unclear how ‘the teachings of the most highly qualified publicists of the various nations’ should be interpreted. The icj Statute itself, the negotiating history on Article 38 (1) (d),39 and the practice of the International Court of Justice do not reveal much about the meaning of ‘the teachings of the most highly qualified publicists of the various nations’.40 International legal scholars, in general, apply a broad understanding of the terms ‘teachings’ and ‘publicists’. The former embraces, among others, ‘digests, treatises, textbooks, monographs, commentaries, journal articles and blog posts’.41 The latter includes writings of institutions as collective products.42 In this context, examples often mentioned are the Institut de Droit 38 Ibid. 39 M. Wood, ‘Teachings of the Most Highly Qualified Publicists (Art. 38 (1) icj Statute)’, mpepil, March 2017, paras. 5–​6; M. Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice’ (2012) 1(3) Cambridge Journal of International and Comparative Law 136–​61 at 138–​40. 40 For the different reasons for a lack of references to teachings by the International Court of Justice, see Wood, ‘Teachings of the Most Highly Qualified Publicists’, para. 10; Peil, ‘Scholarly Writings as a Source of Law’, 143–​7. 41 Wood, ‘Teachings of the Most Highly Qualified Publicists’, para. 11 referring to Sivakumaran, ‘The Influence of Teachings of Publicists’, 23. See also Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 509–​10 (defining teachings as ‘books and articles, purporting to answer legal questions, being used when ascertaining the content of international law.’); Helmersen, ‘The Application of Teachings’, 24. 42 Wood, ‘Teachings of the Most Highly Qualified Publicists’, para. 11.

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International,43 the International Law Association,44 the International Law Commission45 as well as the icrc.46 An inquiry of references to publicists in the jurisprudence of the International Court of Justice reveals that three out of seven references to publicists in the International Court of Justice’s majority opinions are made to institutions –​among which two of these references are to the icrc.47 For the references to publicists in the judges’ individual opinions, out of 191 references to institutions, 29 are made to the icrc.48 With regard to the criteria of ‘the most highly qualified’, reference is frequently made to the Paquete Habana Case of the US Supreme Court.49 In this case, the Court declared that as evidence of the customs and usages of civilised nations, resort must be made to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.50 Similarly, the International Law Commission’s commentary to draft conclusion 14 (‘Teachings’) on the identification of customary international law refers for the assessment of the value of institutional writings to the mandate and expertise of the body concerned, the extent to which the output seeks to state existing law, the care and objectivity with which

43 unga, Report of the International Law Commission (2018), p. 151. 44 Ibid. 45 Wood, ‘Teachings of the Most Highly Qualified Publicists’, para. 11. But see Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 509–​10 (excluding works produced by the International Law Commission ‘because of the significant role of states in their production’). 46 Sivakumaran, ‘The Influence of Teachings’, 4, 7–​10. 47 Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 524. 48 Ibid, 525 (in comparison, 85 references are made to the Institut de Droit International, 18 to the ila, 15 to the American Law Institute and 14 to Harvard Law School). 49 See e.g. ibid, 520; Wood, ‘Teachings of the Most Highly Qualified Publicists’, para. 2; Sivakumaran, ‘The Influence of Teachings’, 2–​3; Peil, ‘Scholarly Writings as a Source of Law’, 143. 50 The Paquete Habana [8 January 1900] 175 US 677, p. 700.

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it works on a particular issue, the support a particular output enjoys within the body, and the reception of the output by States and others.51 As analysed in Chapter 2 for the Commentaries, the Study, and the Guidance, the icrc’s interpretations and law-​ascertainments generally fulfil these criteria. Thus, the icrc’s interpretations and law-​ascertainments qualify as ‘teachings of the most highly qualified publicists of the various nations’.52 Does Determination of Rules of Law Include Their Interpretation? 2.2 According to Article 38 (1) (d) icj Statute, the Court shall apply teachings ‘for the determination of rules of law’. Predominantly, in this context, the ascertainment of customary international law and general principles of law is discussed, while the subject of interpretation is not considered.53 Some legal scholars even expressly opine that under Article 38 (1) (d) teachings of the most highly qualified publicists are not a means for the interpretation of international law.54 Accordingly, only the icrc’s law-​ascertainments, in particular the Rules identified by the Study, would fall under Article 38 (1) (d). The icrc’s interpretations –​including the Commentaries, the Guidance and, arguably, also the commentary to the Rules in the Study –​would not. However, the representatives of this view do not provide any explanations, but refer, for instance, to the Paquete Habana Case,55 or Sir Michael Wood’s entry on ‘Teachings’ in the Max Planck Encyclopedia of Public International Law.56 Neither the US Supreme Court nor Sir Michael Wood object to the possibility of interpretation. In addition, the Paquete Habana Case was decided in 1900, i.e. 20 years before the adoption of the Statute of the Permanent Court of International Justice. The view that teachings are not a means for the interpretation of international law may find some support, if any, in the use of Article 38 (1) (d) icj Statute, 51 52 53 54 55 56

unga, Report of the International Law Commission (2018), p. 151. See also Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, p. 519. See also Serdar Mohammed v Ministry of Defence [2015] ewca Civ 843 para. 171; Murphy, ‘Episode i, Part ii’. See e.g. G. Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60(4) Harvard Law Review 539–​70 at 551; Helmersen, ‘Finding “the Most Highly Qualified Publicists”’, 509–​10. See e.g. Henderson, ‘Status of the icrc Commentaries’ (consequently holding that the icrc Commentaries are not a subsidiary means for the determination of rules of law); Stahn, ‘The icrc and the Development of International Criminal Law’, 161. Henderson, ‘Status of the icrc Commentaries’. Stahn, ‘The icrc and the Development of International Criminal Law’, 161.

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which is particularly applied in regard to the determination of the existence of rules of international custom and general principles.57 In line with this, Alain Pellet describes the purpose of Article 38 (1) (d) as to ensure the international law character of a rule, i.e. belonging to a formal source of law.58 This is generally perceived as difficult for international custom and general principles of law, but is usually not seen as problematic for rules of international conventions.59 On the other hand, the wording ‘determination of rules of law’ is not in contradiction to the inclusion of the determination of the content of rules of law under Article 38 (1) (d), i.e. their interpretation. The reason why, in academia, content-​determination is usually not dealt with in connection to Article 38 (1) (d) is probably due to the fact that the discussions on the interpretation of treaties mainly focuses on Articles 31–​33 vclt,60 while the content-​ determination of customary international law and principles of law is already dealt with under the framework of law-​ascertainment. This experience of the determination of rules of customary international law or general principles of law illustrates that the question of (non)interpretation ultimately depends on the concrete question posed by the user of Article 38 (1) (d). The user can ask about the existence of a rule of law as well as about the existence of a rule of law with specific content. For instance, when discussing the possibility to attack voluntary human shields, the question could be whether a rule of customary law exists that provides for a loss of protection for civilians participating in hostilities and whose content would then have to be further specified. Alternatively, the question could be whether a rule of customary law exists that provides for a loss of protection for civilians voluntarily acting as human

57

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The travaux préparatoires of the Statute of the Permanent Court of International Justice provide little information on this question. Yet, during the discussions of the Advisory Committee of Jurists, the auxiliary character of legal doctrine as an element of interpretation was emphasised, see Procés-​Verbaux of the Advisory Committee of Jurists (1920), p. 334, cited in Peil, ‘Scholarly Writings as a Source of Law’, 140. A. Pellet, ‘Article 38’, in A. Zimmermann and others (eds.), The Statute of the International Court of Justice, 2nd edn. (oup, 2012), para. 305. But see Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles’, 745 (‘Even the definition of what is a convention or treaty is contested and open to interpretation’). For the difference between Article 32 VCLT and Article 38 (1) (d) ICJ Statute, see ilc, Fourth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by Georg Nolte, Special Rapporteur, UN Doc a/​c n.4/​694 (7 March 2016) para. 64 (highlighting that the main difference between these two provisions is that 38 (1) (d) is limited to judicial proceedings, while Article 32 addresses treaty interpretation regardless of such proceedings).

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shields. This example shows that the determination of the existence and the content of a rule of law may overlap. What is obvious for rules of customary law can also be observed for treaty law, especially in cases where the legal character of a rule is under debate. For instance, the Martens Clause61 and Common Article 162 vividly involve questions of existence as rules of law and, at the same time, questions of legal content. But even in cases where the legal character of the rule seems uncontroversial, the different options to formulate the question under Article 38 (1) (d) reveal that excluding content-​determination from the scope of Article 38 (1) (d) is artificial. To stay with the principle of distinction, the question could be either whether Article 51 (3) ap i provides for a loss of protection for civilians voluntarily acting as human shield, or whether a rule exists under Additional Protocol i that provides for a loss of protection for civilians voluntarily acting as human shields. While the former would be classified as content-​determination or interpretation, the latter would be described as existential determination. Both approaches serve the same purpose and should fall under Article 38 (1) (d). Lastly, Zammit Borda reveals that judicial decisions are applied to interpret the law in the practice of international criminal courts and tribunals.63 From this observation, he concludes that, with regard to judicial decisions, Article 38 (1) (d) provides for a ‘verification’ not only ‘of the “existence” and “state” of rules of law at the relevant time’ but also ‘of the “proper” (or “accurate”) interpretation of rules of law.’64 Two considerations suggest that Borda’s conclusion can also be drawn for teachings.65 Firstly, this is suggested by the earlier analysis of the de facto 61 62 63

64 65

For the discussion of the legal content of the Martens Clause, see in this Chapter, at 5. See e.g. Focarelli, ‘A Soap Bubble?’. A. Z. Borda, ‘A Formal Approach to Article 38(1)(d) of the icj Statute from the Perspective of the International Criminal Courts and Tribunal’ (2013) 24(2) ejil 649–​61 referring to icty, Prosecutor v Ntagerura et al. (Judgment) Case No ictr-​99-​46-​A (7 July 2006) para. 127; icty, Prosecutor v Delalić et al. (Judgment) Case No it-​96-​21-​T (16 November 1998) para. 160; icty, Prosecutor v Stakić (Judgment) Case No it-​97-​24-​T (31 July 2003) para. 414. Cf. in this regard also Canadian Cattlemen for Fair Trade v United States, Award on jurisdiction, iic 316 (2008), 28 January 2008, uncitral, para. 50 (‘Article 38 [paragraph 1.d.] of the Statute of the International Court of Justice provides that judicial decisions are applicable for the interpretation of public international law as “subsidiary means”. Therefore, they must be understood to be also supplementary means of interpretation in the sense of Article 32 vclt’). Borda, ‘A Formal Approach to Article 38(1)(d)’, 654. Borda, however, argues that his conclusion does not apply to teachings because they possess less authority and precision; and their inclusion in Article 38 (4) of the Statute of the Permanent International Court of Justice in 1920 was due to the lack of decisions

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authority of the icrc’s interpretations, in particular the acceptance of the first editions of the Commentaries in the legal practice of international criminal courts and tribunals.66 Secondly, Michael Peil observes that the (little) practice of the International Court of Justice also suggests that teachings are considered for interpreting the law.67 In sum, there are strong reasons to classify not only the law-​ascertainments but also the interpretations of the icrc as ‘teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’ under Article 38 (1) (d) icj Statute. 3

No Means of Interpretation under Article 31 of the Vienna Convention on the Law of Treaties

ascertainments could be mandatory The icrc’s interpretations and law-​ means of treaty interpretation under Article 31 vclt.68 However, with regard to Article 31 (1), (2) and (3) (a), the wording is not open for an integration of the icrc’s interpretations and law-​ascertainments.69 of international courts at that time, see ibid, at 659-​60. However, this is not convincing against the background of the use of the icrc’s interpretations in the practice of international courts and tribunals, as well as the wording of Article 38 of the Statute of the Permanent International Court of Justice, which was adopted for the icj Statute in 1945 with almost no changes. 66 See Chapter 2. 67 Peil, ‘Scholarly Writings as a Source of Law’, 153. 68 Cf. the wording ‘shall’ of Article 31 vclt. 69 Some authors argue that under Article 31 (1) the principle of good faith obliges the interpreter to consider pronouncements of UN human rights treaty bodies, see e.g. R. van Alebeek and A. Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies (cup, 2012), p. 365; C. Tomuschat, Human Rights: Between Idealism and Realism, 3rd edn. (oup, 2014), p. 266; UN Human Rights Committee, General Comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc ccpr/​c /​g c/​33 (5 November 2008) para. 15. Cf. also M. Payandeh, ‘Rechtsauffassungen von Menschenrechtsausschüssen der Vereinten Nationen in der deutschen Rechtsordnung’ 39(3) Neue Zeitschrift für Verwaltungsrecht (2020) 125–​9 at 127–​8. However, the authors do not further specify this obligation. For a discussion on the usefulness of the principle of good faith, see H. Aust, ‘Abuse of Rights: From Roman Law to International Law? Comments on the Contribution by Andrea Faraci and Luigi Lonardo’, in B. Baade and others (eds.), Cynical International Law? (Springer, 2020); D. Steiger, ‘In International Law We Shall Trust: (Even in) the Case of Economic and Social Rights’, in B. Baade and others (eds.), Cynical International Law? (Springer, 2020).

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As regards Article 31 (3) (b) vclt, some legal scholars,70 as well as the UN Human Rights Committee in its draft General Comment No. 33,71 endorsed the qualification of pronouncements of UN human rights treaty bodies as subsequent practice in the meaning of Article 31 (3) (b).72 These approaches are based on the quasi-​judicial character of the UN human rights treaty bodies,73 or the special character of human rights treaties.74 Accordingly, they are not applicable vis-​à-​vis the icrc’s outputs. Moreover, in their responses to the UN Human Rights Committee, several states clearly opposed the qualification of pronouncements of UN human rights treaty bodies under Article 31 (3) (b), emphasising that it is only the actual practice of the state parties that constitutes subsequent practice referred to in this provision.75 Bending to this opposition, the UN Human Rights Committee avoided any reference to Article 31 (3) (b) in the final version of its General Comment No. 33.76

70

71 72 73 74 75

76

Cf. International Law Association, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies; Keller and Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’, pp. 130–​2 (with further references). But see also the opposing views e.g. by M. Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’ (2018) 67(1) iclq 201–​32 at 218. See also J. Crawford, ‘A Consensualist Interpretation of Article 31(3) of the Vienna Convention on the Law of Treaties’, in G. Nolte (ed.), Treaties and Subsequent Practice (oup, 2013), p. 31; M. G Kohen, ‘Keeping Subsequent Agreements and Practice in Their Right Limits’, in G. Nolte (ed.), Treaties and Subsequent Practice (oup, 2013), pp. 41–​2. UN Human Rights Committee, Draft general comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc ccpr/​c /​g c/​33/​c rp.3 (25 August 2008) para. 18. See also I. Jelić and L. Mührel, ‘The Human Rights Committee –​Challenges and Prospects for Enhanced Effectiveness and Integration’ (2022) 14(1) Journal of Human Rights Practice 17–​43. UN Human Rights Committee, Draft general comment No 33, para. 18. International Law Association, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, para. 22. See e.g. US, ‘Comments of the United States on the Human Rights Committee’s “Draft general comment 33: The Obligations of States Parties under the Optional Protocol to the International Covenant Civil and Political Rights”’, 17 October 2008 accessed 31 August 2023, p. 6. UK, ‘Comments of the Government of the United Kingdom of Great Britain and Northern Ireland on draft General Comment 33: “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights”’, 17 October 2008 accessed 31 August 2023, p. 2. For a summary of the reactions by several states, see Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’, 205–​6. UN Human Rights Committee, General Comment No 33, para. 13.

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In its draft conclusions on subsequent agreements and subsequent practice in relation to interpretation of treaties, the International Law Commission reinforces this restrictive reading of Article 31 (3) (b), holding that only the conduct of a party in the application of a treaty may constitute subsequent practice, while conduct by non-​state actors generally does not constitute subsequent practice.77 Only practice of international organisations in the application of their constituent instruments may fall under Article 31 (3) (b).78 The constitution of the international organisation under its treaty is decisive for the acceptance of the organisation’s practice as a means of interpretation for the treaty constituting it. This is based on the assumption that, in order to maintain the effectiveness of the organisation and the purpose underlying it, the organisation or its bodies shall be allowed to carry out the functions assigned to it to a limited extent. This independent carrying out of functions is, however, based on a competence accorded to the international organisation through the treaty.79 This reasoning cannot be applied to the icrc since the Geneva Conventions and Additional Protocols are not the constituent instrument of the icrc and, as analysed above,80 neither these treaties nor the Statutes of the Movement explicitly or implicitly confer competences to the icrc. Accordingly, there is no basis to subsume the icrc’s interpretations and law-​ascertainments under Article 31 (3) (b). With regard to Article 31 (3) (c) vclt, the terms ‘rules’ and ‘applicable’ imply that only legally binding instruments are embraced by this provision. Nevertheless, the application of nonbinding instruments for the interpretation of treaties can frequently be observed in judicial practice, even under Article 31 (1) (c).81 However, Oliver Dörr points out that, in some instances, reference was made not to the nonbinding instruments as ‘rules’, but as guidance for the interpretation of other treaty regimes.82 The same conclusion can be drawn from the analysis of the references to the icrc’s interpretations and law-​ ascertainments in the practice of international courts and tribunals. Although in particular the first editions of the icrc Commentaries and also the Study have often been accorded a special status in legal practice and academia, it cannot be concluded that the icrc’s interpretations and law-​ascertainments

77 unga, Report of the International Law Commission (2018), p. 37, draft conclusion 5. 78 Ibid, p. 93, draft conclusion 12 (3). 79 Ibid, pp. 101–​4. 80 See Chapter 1, at 2. 81 Dörr, ‘Article 31’, paras. 100–​1 (showing practice of the European Court of Human Rights, the Inter-​American Commission on Human Rights and the International Court of Justice). 82 Ibid, para. 101.

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are generally used as rules of international law. Rather, the status accorded to them varies from user to user, from practitioner to legal scholar, from judge to legal advisor and from international humanitarian law scholar to law of armed conflict scholar. Especially in state practice, the Commentaries were primarily taken into account as guidance for the interpretation of the Geneva Conventions and Additional Protocols.83 The Study was primarily considered as guidance for the state of customary ihl.84 The icrc’s interpretations and law-​ascertainments do not constitute rules under Article 31 (3) (c) vclt. Lastly, Kriangsak Kittichaisaree’s proposal to consider the Guidance as a special meaning in accordance with Article 31 (4) vclt85 finds no support in the wording of Article 31 (4), which requires the parties’ intention to establish the special meaning, in legal practice, or in academia.86 To conclude, there is no room for arguing that the icrc’s interpretations and law-​ascertainments fall under Article 31 vclt.87 4

Supplementary Means of Interpretation under Article 32 of the Vienna Convention on the Law of Treaties?

Article 32 vclt provides supplementary means for the interpretation of international treaties, which are not obliged to be taken into account.88 Apart from ‘the preparatory work of the treaty and the circumstances of its conclusion’, Article 32 does not mention further means of treaty interpretation. The wording ‘including’ indicates that Article 32 is not final and is open to other supplementary means of treaty interpretation. In addition, neither the provision’s wording and purpose, nor the travaux préparatoires to the vclt, are informative on the limits of Article 32. The wording only implies that supplementary means of treaty interpretation must relate to substantial matters.89 From this, some legal scholars see no limits for supplementary means of treaty interpretation and conclude that it is up to the respective interpreter to decide which other means can be used.90 Using this reasoning, the icrc’s interpretations 83 See Chapter 2, at 1.2 and 2.2. 84 See Chapter 2, at 3.3. 85 ilc, Summary record of the 3162nd meeting, p. 12. 86 Cf. Dörr, ‘Article 31’, paras. 109–​11 (with references to legal practice). 87 Cf. also Murphy, ‘Episode i, Part ii’; Schmitt, ‘The Status of Opposition Fighters’, 122. 88 See the wording ‘may’ in Article 32 vclt. 89 Dörr, ‘Article 32’, para. 25. 90 Ibid, para. 27; Y. Le Bouthillier, ‘Article 32’, in O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties (oup, 2011), para. 21.

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and law-​ascertainments would constitute supplementary means of treaty interpretation under Article 32 vclt.91 Yet, categories of supplementary means under Article 32 have been formed in legal practice and legal doctrine, while the use of certain other means is met with rejection.92 For instance, state practice not covered by Article 31 (3) (b) may be used as a supplementary means under Article 32.93 Based on international case law, the consideration of other treaties on the same subject matter (not falling under Article 31 (3) (c)) finds broad support.94 In addition, the inclusion of the practice of international organisations under Article 32 with respect to their constituting treaties is widely accepted.95 Yet, the underlying argument does not apply to the icrc, which is not constituted by international law since it is an ngo. Furthermore, legal scholars have advocated for the use of pronouncements of expert treaty bodies, especially human rights treaty monitoring bodies, as supplementary means of interpretation under Article 32, particularly given the frequent use of such pronouncements in legal practice.96 Given this, it is worth considering whether such a category (mutatis mutandis) would apply to the icrc’s interpretations and law-​ascertainments,97 which have also been frequently used in legal practice.98 However, the International Law Commission, in its draft conclusions on subsequent agreements and subsequent practice, categorically held that conduct by non-​state actors other than international organisations does not 91

Cf. Stahn, ‘The International Committee of the Red Cross and the Development of International Criminal Law’, p. 207. 92 See in this regard also Le Bouthillier, ‘Article 32’, para. 47 (noting that international courts and tribunals ‘have mostly favoured recourse to preparatory work and, more generally, have used supplementary means to confirm the interpretation of a provision, and only exceptionally to determine its meaning’). 93 unga, Report of the International Law Commission (2018), p. 39, draft conclusion 5 (1). 94 A. Aust, Modern Treaty Law and Practice, 3rd edn. (cup, 2013), p. 220; Mbengue, ‘Rules of Interpretation’, 395; Le Bouthillier, ‘Article 32’, para. 47 referring to icj, Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Judgment, icj Rep 1996, p. 803 at 814 and 819. 95 unga, Report of the International Law Commission (2018), p. 93, draft conclusion 12 (3). 96 See e.g. Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’, 220. See also ilc, Fourth report on subsequent agreements and subsequent practice, paras. 58–​94; International Law Association, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, paras. 20–​1. 97 Indeed, this argument was made by Henckaerts and Pothelet, which point to the icrc’s involvement in the application of ihl and its mandate given by states, see Henckaerts and Pothelet, ‘The interpretation of ihl treaties’, p. 167. 98 See Chapter 2.

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constitute subsequent practice under Article 32, and may only be relevant when assessing the subsequent practice of parties to a treaty.99 The Special Rapporteur’s proposal to include pronouncements of expert treaty bodies as supplementary means of interpretation under Article 32100 was not adopted and the International Law Commission ultimately left the question of the pronouncements’ legal relevance open.101 In their comments to the International Law Commission, states were also divided in their views and either supported102 or refused103 to accept pronouncements of expert treaty bodies as subsequent practice under Article 32 or agreed to leave this question open.104 It must therefore be assumed that the development of a category according to which statements by expert treaty bodies may be used as supplementary 99 unga, Report of the International Law Commission (2018), p. 37, draft conclusion 5 (2). 100 ilc, Fourth report on subsequent agreements and subsequent practice, para. 94, draft Conclusion 12 (3). For a review of the discussion on the legal relevance of pronouncements of expert treaty bodies between the International Law Commission members, see L. Mührel, ‘Die Kommentare des Internationalen Komitees vom Roten Kreuz, ihre Autorität und ihr Einfluss auf die Entwicklung des Humanitären Völkerrechts im Wandel der Zeit’, in S. Wuschka and others (eds.), Zeit und Internationales Recht (Mohr Siebeck, 2019), pp. 159–​60. 101 unga, Report of the International Law Commission (2018), p. 106, draft conclusion 13 (2) and (4). 102 Germany, ‘Comments and observations provided by the Federal Republic of Germany with reference to the request of the International Law Commission regarding its Draft Conclusions on the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”’ accessed 31 August 2023, pp. 3–​4; Czech Republic, ‘International Law Commission’s draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties –​Czech Republic’s comments’ accessed 31 August 2023, p. 13. 103 Sweden, ‘Statement by the Nordic Countries’ accessed 31 August 2023; US, ‘Comments from the United States on the International Law Commission’s Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties as adopted by the Commission in 2016 on First Reading’ accessed 1 August 2023, pp. 11–​4. 104 Spain, ‘Comentarios y observaciones de Espana al Proyecto de conclusions de la cdi sobre “Los acuerdos ulteriores y la práctica ulterior en relacion con la interpretacion de los tratados”’, 18 December 2017 accessed 31 August 2023, p. 3; UK, ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties: written comments of the United Kingdom’, January 2018 accessed 31 August 2023, p. 5.

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means under Article 32 is still in progress, and that this development was at least slowed down by the final work of the International Law Commission.105 In addition, the International Law Commission has formulated certain prerequisites for the potential application of pronouncements of an expert treaty body under Article 32. Amongst other things, the expert treaty body must be appropriately mandated under a treaty.106 As analysed above,107 the icrc does not fulfil this prerequisite. The relevance of the icrc’s interpretations and law-​ascertainments was also examined in the International Law Commission’s work on subsequent agreements and subsequent practice.108 In the discussions within the Commission, there were voices both in favour of109 and against110 a relevance of the icrc’s interpretations and law-​ascertainments as supplementary means under Article 32. The US opposed such a relevance in its comment to the International Law Commission,111 whereas other states did not make any statement on this specific topic and generally emphasised that practice of non-​state actors (other than international organisations) should not be viewed as constituting subsequent practice under Articles 31 and 32 vclt.112 Finally, the icrc’s practice was addressed in the commentary to draft conclusion 5 (2), which points out that conduct by non-​state actors does not constitute subsequent practice under

105 Even if the adoption of the Special Rapporteur’s proposal would not have meant a validation of a legal norm in the light of positive international law, the idea of what would have happened if the International Law Commission had followed the Special Rapporteur’s proposal suggests that subsequently, legal practice and academia would have referred to Article 32 when using pronouncements of expert treaty bodies in the interpretation of treaties. 106 unga, Report of the International Law Commission (2018), pp. 106–​8, 116. 107 See Chapter 1, at 2. 108 See e.g. ilc, First report on subsequent agreements and subsequent practice, paras. 141–​3. 109 See e.g. ilc, Summary record of the 3162nd meeting, p. 11 (Mr. Sturma); ilc, Summary record of the 3162nd meeting, p. 12 (Mr. Kittichaisaree). 110 See e.g. ilc, Provisional summary record of the 3207th meeting, UN Doc a/​c n.4/​3207 (18 August 2014) p. 3 (Ms. Escobar Hernández), p. 4 (Mr. Tladi). 111 US, ‘Comments from the United States on the International Law Commission’s Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties as adopted by the Commission in 2016 on First Reading’ accessed 31 August 2023, p. 6. 112 See ilc, Fifth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties by Georg Nolte, Special Rapporteur, UN Doc a/​c n.4/​715 (28 February 2018) paras. 48, 122, 131 and 142. paras. Note that some states even opposed to the view that practice of international organisations may constitute subsequent practice under Article 31 (3) (b) and Article 32, see paras. 110–​1.

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Article 32.113 The commentary cites the icrc as an example of a non-​state actor in the meaning of this conclusion.114 The International Law Commission bases its conclusion that non-​state actors’ practice does not, in itself, constitute means of interpretation on the reasoning that the states parties to a treaty ‘are the masters of the treaty and are ultimately responsible for its application.’115 Non-​state actors can ‘pursue their own goals, which may be different from those of States parties. Their documentation and their assessments must thus be critically reviewed.’116 The conclusion of the International Law Commission and the argumentation put forward in the commentary are not convincing, especially given the frequent use of the icrc’s interpretations and law-​ascertainments in legal practice beyond the assessment of subsequent practice of parties to the Geneva Conventions and Additional Protocols, as well as the means embraced by Article 38 (1) (d) icj Statute. The Commentaries, the Study and to a lesser extent also the Guidance have been used as authority on what constitutes ihl. Interpretations, rules and concepts from these publications have sometimes been applied in a law-​like way.117 Article 38 (1) (d) permits recourse to legal views of non-​state actors, despite the possibility that they may pursue their own goals, arguably also for the determination of the content of treaty rules.118 This comparison between Article 32 vclt and Article 38 (1) (d) icj Statute has partly been drawn in legal practice in order to argue for the use of judicial decisions as supplementary means under Article 32 vclt.119 In its commentary on draft conclusion 13 (4) regarding the potential relevance of pronouncements of expert treaty bodies for the interpretation of treaties, the International Law Commission itself refers to Article 38 (1) (d).120 Criticism of this comparison is not convincing nor is the claim that judicial decisions and teachings, or practice of non-​state actors in general, may not be used under Article 32 vclt by asserting that Article 38 (1) (d) icj Statute ‘can help to identifying the content of customary international rules, general

1 13 unga, Report of the International Law Commission (2018), p. 37. 114 Ibid, pp. 41–​2. 115 Ibid, p. 39. 116 Ibid, pp. 41–​2. 117 See Chapter 2. 118 See in this Chapter, at 2. 119 See e.g. Canadian Cattlemen for Fair Trade v United States, Award on jurisdiction, iic 316 (2008), 28 January 2008, uncitral (nafta), para. 50. 120 unga, Report of the International Law Commission (2018), pp. 115–​6. See also ilc, Fourth report on subsequent agreements and subsequent practice, para. 63.

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principles of law, and other international rules’, but not of treaty rules,121 or if it is merely stated that Article 38 (1) (d) icj Statute and Article 32 vclt are two different norms.122 The criticism also fails to recognise that the wording of Article 32 vclt has deliberately been left open to means of treaty interpretation other than the preparatory work of a treaty and the circumstances of its conclusion. The inclusion of preparatory work in Article 32 vclt was based on the observation of its frequent use for interpretation in legal practice.123 For the same reasons, practice of non-​state actors, and especially pronouncements of expert treaty bodies and the icrc’s interpretations and law-​ ascertainments should not be categorically excluded as supplementary means of interpretation. This would not necessarily mean that the practice of all non-​state actors could be equally considered under Article 32 vclt. Criteria for grading and evaluating the practice of non-​state actors could be established. The International Law Commission itself carefully discussed some criteria for determining the value of decisions of international courts and tribunals124 and teachings125 as a subsidiary means for the determination of rules of customary international law in its commentary to the conclusions on the identification of customary international law. Most recently, the International Law Commission started a project work on subsidiary means for the determination of rules of international law. In its first draft conclusions, the Commission proposed six general criteria for the assessment of subsidiary means for the determination of rules of international law: (a) degree of representativeness, (b) quality of reasoning, (c) expertise, (d) level of agreement, (e) reception by states and other entities and (f) mandates.126 However, the work only focusses on Article 38 (1) (d) icj Statute and, so far, the Commission has not mentioned the interpretation of 1 21 Mbengue, ‘Rules of Interpretation’, 398–​9. 122 M. W. Reisman, ‘United States of America (Claimant) v Canada (Respondent), lcia Case No 81010: Opinion with Respect to Selected International Legal Problems’, London Court of International Arbitration No Case No 7941, 1 May 2019, para. 16 (‘by jumping from “supplementary” o “subsidiary” (words which certainly sound similar), the Tribunal grafts something onto the vclt’s canon of rules for interpretation which is not –​and should not –​be there’). Note in this regard, that the International Law Commission used these words synonymously in its commentary to the draft vclt, see ilc, Report of the International Law Commission to the UN General Assembly, p. 223. 123 ilc, Report of the International Law Commission to the UN General Assembly, p. 223. 124 unga, Report of the International Law Commission (2018), p. 149. 125 Ibid, p. 151. 126 ilc, Subsidiary means for the determination of rules of international law: Titles and texts of draft conclusions 1 to 3 provisionally adopted by the Drafting Committee, UN Doc a/​ cn.4/​L.985 (2 June 2023), draft conclusion 3.

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treaties. The six criteria and other criteria (for instance, those identified as a basis for the authority of the Commentaries, the Study and the Guidance in Chapter 2) could also be adopted for grading and evaluating the practice of non-​state actors to be applied as supplementary means for the interpretation under Article 32. The icrc’s interpretations and law-​ascertainments are based on their authors’ tremendous expertise of ihl –​including, for instance, knowledge about the negotiations of ihl treaties, their application in the field and icrc communications with parties to armed conflicts. Their frequent use in legal practice conforms with the purpose of Article 32



to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.127

Since means under Article 32 are only of supplementary nature and not mandatorily taken into account,128 a critical review of the icrc’s interpretations and law-​ascertainments would be assured as the International Law Commission demands in its commentary to draft conclusion 5 (2).129 Incidentally, this was already demanded over 50 years ago in its commentary to the vclt for the use of travaux préparatoires.130 5

The icrc’s Interpretations and Law-​Ascertainments under the Martens Clause as Dictates of Public Conscience?

The Martens Clause gives reason to consider whether ihl itself provides for a provision to include the icrc’s interpretations and law-​ascertainments in positive international law.

1 27 Emphasis added. 128 But note that, in practice, supplementary means of interpretation possess in the system of Article 31 and Article 32 de facto the same relevance to that of the general rule of interpretation, see Dörr, ‘Article 32’, paras. 31–​2, 35. 129 unga, Report of the International Law Commission (2018), pp. 41–​2. 130 ilc, Report of the International Law Commission to the UN General Assembly, p. 220.

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The Martens Clause was first included in the preambles of the 1899 Hague Convention131 and the 1907 Hague Convention as a ‘diplomatic ploy’132 and has been incorporated into numerous subsequent treaties. The Clause refers the parties to an armed conflict to customary international law, the principles of humanity, and the dictates of public conscience for the protection of the civilian population and combatants in a situation not covered by treaty-​based ihl.133 It must first be discussed whether, and if so what, legal significance the Martens Clause has before it is possible to answer the question of whether the icrc’s interpretations and law-​ascertainments can fall under the dictates of public conscience. Due to its uncommonly broad wording and genesis, the Martens Clause has been subject to a variety of interpretations. In general, four main approaches for the interpretation of the Clause can be identified,134 considering the Clause as: (1) irrelevant/​inapplicable,135 (2) a reminder that customary and treaty-​based ihl apply in parallel,136 (3) an affirmation of the existence of a separate source of international law to be distinguished from

131 The Preamble notes that ‘[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’. 132 A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11(1) ejil 187–​216 at 193–​4 and 197. 133 For detailed information on the genesis of the Martens Clause, see J. von Bernstorff, ‘Martens Clause’, mpepil, December 2009; R. Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (1997) 37(317) irrc 125–​34; M. Salter, ‘Reinterpreting Competing Interpretations of the Scope and Potential of the Martens Clause’ (2012) 17(3) jcsl 403–​37. 134 For a detailed comparison and evaluation of the different interpretations, see K. Schöberl and L. Mührel, ‘Sunken Vessel or Blooming Flower? Lotus, Permissions and Restrictions within International Humanitarian Law’, in B. Baade, L. Mührel and A. O. Petrov (eds.), International Humanitarian Law in Areas of Limited Statehood (Nomos 2018), pp. 75–​9. 135 See e.g. Cassese, ‘The Martens Clause’, 193–​4 and 197; Russia, ‘Written Statement and Comments of the Russian Federation on the Issue of the Legality of the Threat or Use of Nuclear Weapons’, 19 June 1995 accessed 31 August 2023, p. 13. 136 See e.g. UK, Letter from the Legal Advisor to the Foreign and Commonwealth Office of the United Kingdom and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom, 16 June 1995 accessed 31 August 2023, para. 3.58.

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customary and treaty law,137 and (4) a prevention of an a contrario argument based on the Lotus principle.138 The repeated inclusion of the Clause in the Geneva Conventions and the Additional Protocols, including in substantial provisions,139 speaks against its irrelevance and/​or inapplicability. The trivialisation of the Clause as a mere reminder of the applicability of customary international law fails to recognise that it extends to the ‘principles of humanity’ and the ‘dictates of public conscience’, which can hardly be reduced to mean customary international law. Furthermore, in the absence of a general hierarchy between the legal sources in international law, no reminder of parallel applicability is required. The view that the Martens Clause lays down the principles of humanity and the dictates of public conscience as separate legal sources finds no support in the Clause’s genesis.140 Additionally, it has never been found that a rule has emerged only as a result of the ‘principles of humanity’ or the ‘dictates of public conscience’ in international and national jurisprudence, state practice or academic writings. Rather, treaty or customary international law was required for a positive rule to exist.141 Based on these considerations, the reading that the Martens Clause 137 See e.g. icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Rep 1996, p. 226, Dissenting Opinion of Judge Shahabuddeen, 375–​428, p. 410. 138 L. Doswald-​Beck, ‘International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons’ (1997) 37(316) irrc 35–​55 at 49; Schöberl and Mührel, ‘Sunken Vessel or Blooming Flower?’, 78–​9. 139 Cf. common Article 63/​62/​142/​158 of the Geneva Conventions and Article 1 (2) ap i. 140 Compare the icrc draft preamble to the Additional Protocols to the Geneva Conventions of August 12, 1949 and their Commentary (Geneva, October 1973) p. 5 (‘Recalling that, in cases not covered by conventional or customary international law, civilian population and the combatants remain under the protection of the principles of humanity and the dictates of the public conscience’) with the final wording of Article 1 (2) ap i. The Drafting Committee did not follow the icrc’s proposal and located the principles of humanity and dictates of the public conscience within the Martens Clause-​formulation requiring the existence of ‘principles of international law derived from … the principles of humanity and from the dictates of public conscience’, see Bothe, Partsch and Solf, New Rules for Victims of Armed Conflicts, 1st edn., pp. 42–​3. But see also the preamble of the Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017) unga a/​r es/​71/​258, which ‘[reaffirms] that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience’ and hence takes a more affirmative stance than previous drafts which had reaffirmed ‘that in cases not covered by this convention, 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’. 141 See generally icty, Prosecutor v Kupreskic et al (Judgment) icty-​95-​16-​T-​14 (14 January 2000) para. 525; Cassese, ‘The Martens Clause’, 202–​8; M. E. O’Connell, ‘Historical

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formulates an a contrario argument for the applicability of the Lotus principle in ihl seems preferable. However, this simultaneously limits its range of application considerably.142 With that in mind, the question is then whether the icrc’s interpretations and law-​ascertainments qualify as ‘dictates of public conscience’ and, as such, can (at least) be used in cases where a gap in ihl exists. The problem in this respect is that the term ‘dictates of public conscience’ is very vague. There is no comparable regulation in international law. Furthermore, the travaux préparatoires to the various treaties that include the Clause as well as legal practice do not provide any idea of how to understand dictates of public conscience. Some suggest that such sources are covered by the Martens Clause that speak with authority, such as UN General Assembly resolutions.143 In this sense, the icrc’s interpretations and law-​ascertainments could constitute dictates of public conscience. However, these proposals have not been further discussed. 6

What Role for Non-​state Actors? A Political Question

This chapter has shown that it is arguably possible to use the icrc’s interpretations and law-​ascertainments as supplementary means of interpretation under Article 32 vclt or subsidiary means for the determination of rules of law under Article 38 (1) (d) icj Statute. However, opposition to the inclusion of non-​state actors’ practice, including that of the icrc, can simultaneously be observed. This position is formed against the background of a traditional view of international law that emphasises the primary role of states. Most recently, this opposition found expression in the International Law Commission’s conclusions on subsequent agreements and subsequent practice, and on the identification of customary international law. It was also expressed in state practice and in writings of legal scholars. This reinforces the perception that non-​state actors –​other than international organisations –​have no direct legal impact on the interpretation of treaties or the formation of customary law, and

Development and Legal Basis’, in D. Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edn. (oup, 2014), para. 131. But see Maresca and Lavoyer, ‘The Role of the icrc in the Development of International Humanitarian Law’, 511–​7. 142 For a more detailed reasoning, see Schöberl and Mührel, ‘Sunken Vessel or Blooming Flower?’, pp. 75–​8. 1 43 icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Rep 1996, p. 226, Dissenting Opinion of Judge Shahabuddeen, 375–​428, p. 410; Sassòli, International Humanitarian Law, paras. 4.52–​4.53.

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may only be relevant when assessing the practice of states and international organisations. This result contrasts with the use of the icrc’s Commentaries, the Guidance and the Study in legal practice and the de facto authority that they enjoy –​as was discussed above in Chapter 2.144 Even the least controversial classification of these documents as ‘teachings of the most qualified publicists’ –​which is contested with regard to the interpretation of treaties –​seems artificial.145 This contrast feeds the criticism that the classical type of international law leads to an ‘oversimplification of a much more complex dynamic’ and can only insufficiently explain the reality of international law.146 The refusal to adequately explain the role of non-​state actors, such as the icrc, by means of international law may preserve the integrity of international law, but at the same time risks undermining its credibility and relevance.147 The International Law Commission missed the opportunity to elaborate on the relevance of non-​state actors and to eventually open international law to their influence on the interpretation of treaties and the formation of customary international law.148 The relevance of non-​state actors’ influence on these issues has been thematised for a long time. As early as 1980, Sir Robert Jennings stated that [i]‌t may cause surprise that I have spent so long on merely one of the sources which is described in Article 38 as a ‘subsidiary means for the ascertainment of the law’. This is because it is precisely here –​the analysis, refinement, clarification, and systematising of a mass of existing law, 144 Cf. also the contrast between the impact of human rights treaty bodies’ General Comments and their relevance according to positive international law discussed by Ulfstein, ‘Law-​ making by human rights treaty bodies’, pp. 249–​50. 145 See also Sassòli, International Humanitarian Law, para. 4.68; Stappert, ‘A New Influence of Legal Scholars?’, 975. 146 A. Bianchi, ‘Law, Time, and Change: The Self-​Regulatory Function of Subsequent Practice’, in G. Nolte (ed.), Treaties and Subsequent Practice (oup, 2013), p. 137. See in this context also the criticism of the traditional view of international law regarding the role of interpretation in the making of international law, Venzke, How interpretation makes international law, pp. 239–​40. 147 Cf. H. Krieger and G. Nolte, ‘The International Rule of Law –​Rise or Decline? Approaching Current Foundational Challenges’, in H. Krieger, G. Nolte and A. Zimmermann (eds.), The International Rule of Law (oup, 2019), pp. 18–​9. 148 See also Venzke, How interpretation makes international law, p. 240 (‘The rules of interpretation, including the doctrine of subsequent practice, will need to develop in line with the justification of authority in a normative pluriverse in which state sovereignty is no longer the primary or even exclusive building block for legitimate order’).

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or near-​law, that our contemporary problem resides. Paradoxically, the subsidiary means are now, at least for a season, of the first importance … [They] are today probably of greater importance than ever before; and that it is these two sources which are most likely to bring certainty and clarity in the places where the mass of material evidence is so large and confused, as to obscure the basic distinction between law and proposal.149 Since then, there has been an increased number of voices that classify legal doctrine, jurisprudence and the practices of non-​state actors in general as legal sources,150 or as contribution to the making of international law.151 A doctrine of sources of law other than an international law of coordination with cooperative elements oriented towards state sovereignty is needed.152 In this regard, it is worth remembering that, in the beginning of modern international law, legal doctrine constituted a source of international law.153 At the same time, the revaluation of the practice of non-​state actors would not exclude that the relevance of the different sources of law could be differentiated.154 The practice of non-​state actors could still find less weight than that of states. There are indeed strong reasons to maintain the constituent role of state consent for normativity. Heike Krieger argues that as long as the world order is constructed around states holding the monopoly on legitimately exercising violence as the ordering frame for societies, international law needs to rely on those actors and their consent to its rules. Next to such a pragmatic argument there are also normative considerations at play here. After all, consent is an indication for empirical legitimacy and an important element of normative legitimacy, and legitimacy may in turn trigger compliance.155 149 R. Y. Jennings, ‘What is International Law and how do we tell it when we see it?’, in B. S. Markesinis and J. H. M. Willems (eds.), The Cambridge –​Tilburg Law Lectures (Kluwer, 1983), pp. 21–​3. See also A. Verdross and B. Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn. (Duncker & Humblot, 1984), pp. 399–​400. 150 See e.g. Fastenrath, Lücken im Völkerrecht, pp. 120–​1. 151 See e.g. Sivakumaran, ‘The Influence of Teachings’, 23–​4. 152 Ruffert, ‘Zwischen Quelle und Gericht’, p. 218. 153 Verdross and Simma, Universelles Völkerrecht, pp. 399–​400. 154 Fastenrath, Lücken im Völkerrecht, p. 121. Cf. also Sassòli, International Humanitarian Law, para. 4.55. The doctrine of sources would not even have to be modified to integrate non-​state actors. Their practice could be considered alongside the sources, cf. Collins, ‘Consent, Obligation and the Legitimate Authority of International Law’, p. 209. 155 H. Krieger, ‘Cynicism as an Analytical Lense for International Law? Concluding Observations’, in B. Baade and others (eds.), Cynical International Law? (Springer, 2020),

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In addition, the practice of the diverse non-​state actors could, and still would have to, be weighted differently between themselves since the influence of non-​state actors involves not only advantages, but also disadvantages.156 The International Law Commission has taken the first small step to open international law towards the influence of non-​state actors, but also reflects the continuing uncertainty of the international legal community in dealing with non-​state actors.157 It found that the practice of international organisations may contribute to the formation of customary international law and constitute subsequent practice for the interpretation of treaties, which was further differentiated according to the form of action. The International Law Commission could have gone further in its findings on the influence of non-​ state actors without losing acceptance for its work: International law ‘allow[s]‌ for organic change to reflect new social realities.’158 The International Law Commission found in its conclusions that the practice of non-​state actors is relevant in the assessment of state practice. However, the Commission could have provided a more detailed description of the relevance of the practice of non-​state actors, for instance, as a catalyst, as a concentration or as indirect evidence of state practice. Additionally, in the commentaries to the conclusions, the Commission could have established (further and more detailed) criteria with which the relevance of the practice of the different non-​state actors could have been assessed. In the end, the International Law Commission decided to strengthen the position of the states. This decision of the Commission is not a legal but a political one.159 This is evidenced by the fact that other ways of conceiving the role of non-​state actors would have been plausible from a legal perspective, as this chapter demonstrates. It is doubtful whether the International Law Commission’s conclusions led to any changes in the way the icrc’s interpretations and law-​ascertainments –​or any other output of non-​state actors –​are used in legal practice or academia. Marco Sassòli pragmatically states:

1 56 157 1 58 159

p. 353. See also Collins, ‘Consent, Obligation and the Legitimate Authority of International Law’, pp. 234–​5. See e.g. Krieger and Nolte, ‘The International Rule of Law –​Rise or Decline?’, pp. 24–​5. C. J. Tams, ‘Die Identifikation des Völkergewohnheitsrechts’, in N. Dethloff, A. Reinisch and G. Nolte (eds.), Freiheit und Regulierung in der Cyberwelt –​Rechtsidentifikation zwischen Quelle und Gericht (c.f. Müller, 2016), p. 361. Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles’, 744. In this context, see Burchardt, ‘The twilight of legal order?’, 125 and 139; Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, 26.

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These phenomena may be seen as a kind of sources of ihl (at least as ‘soft law’) or they may be classified into the traditional categories as evidence for customary law, interpretations of treaties or scholarly writings. Regardless of how they are classified according to everyone’s doctrinal choices, they must be taken into account when studying and applying ihl. Indeed, these sources are actually taken into account, including by States, even if their State-​centred rhetoric and their resulting theory of sources cannot justify this.160 This last chapter has shown that the view seems to prevail that the use of the icrc’s interpretations and law-​ascertainments is only governed by Article 38 (1) (d) icj Statute –​if at all –​despite their huge impact on ihl and the structural rules of international law, which was demonstrated in Chapters 2 and 3. This development is advocated by the states and the International Law Commission seeking to preserve the classical type of international law. This may formally strengthen the role of states in international law and weaken the role of the icrc and non-​state actors in general, but endanger the credibility and relevance of international law.

160 Sassòli, International Humanitarian Law, para. 4.58.

Conclusion In all these matters the lawyer must do his duty regardless of dialectical doubts–​though with a feeling of humility springing from the knowledge that if international law is, in some ways at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law. He must continue to expound and to elucidate the various aspects of the law of war for the use of armed forces, of governments, and of others. He must do so with determination though without complacency and perhaps not always very hopefully–​the only firm hope being that a world may arise in which no such calls will claim his zeal.1

∵ This conclusion begins with summarising the main research results. Then, the future role of the icrc’s interpretations and law-​ascertainments is discussed. Lastly, the question of how to deal with the icrc’s interpretations and law-​ ascertainments is addressed. 1

Summary of Main Research Results

The book’s main results can be summarised as follows: First, the Geneva Conventions, the Additional Protocols and the Statutes of the Red Cross and Red Crescent Movement do not confer a competence on the icrc to interpret and ascertain ihl. Its interpretations and law-​ascertainments are not legally binding. It is primarily the role of states to legally decide what constitutes ihl. However, the icrc enjoys de facto authority to interpret and ascertain ihl based on its history, its expertise, its moral commitments, its special relationship with Switzerland and the perception that it is a special actor under international law.

1 H. Lauterpacht, ‘The Problem of the Revision of the Law of War’ (1952) 29 British Yearbook of International Law 360–​82 at 381–​2.

© Linus Mührel, 2024 | DOI:10.1163/9789004687820_007

310 Conclusion Second, the five case studies on the de facto authority of the Pictet Commentaries, the ap Commentary, the Study, the Guidance and the icrc’s new Commentaries have demonstrated that the icrc’s interpretations and law-​ascertainments are frequently relied on by legal practitioners and legal scholars. The main reason for the acceptance of the icrc’s outputs lies in the belief in their correctness. They are perceived as being able to authoritatively identify what constitutes ihl. This authority is based on different marks; in particular, expertise, the institutional authority of the icrc, tradition, authorship, form, methodology and the underlying process. Third, the authority of the Commentaries, the Study and the Guidance varies. Reasons for this include the different proximity of these outputs to the rules of international law, as well as the rules’ distinct certainty and determinability. Likewise, the marks of authority and their implication for the icrc’s interpretations and law-​ascertainments have changed over time. For instance, the authorship of Jean Pictet, the ihl expert of the 20th century, was crucial for the authority of the first generation of icrc Commentaries. However, the decisive factor for the authority of the new generation of icrc Commentaries was the expert process involving various experts from different parts of the world and different fields of international law. In relation to ihl, the reasons for this change lie in in the expansion of international law in general; and in the expansion and diversification of international humanitarian law scholarship in particular. Fourth, the change of the marks of authority is accompanied by a change in the icrc’s role for ihl. The Pictet Commentaries and the ap Commentary show that the icrc had a considerable amount of leeway in the interpretation of ihl. Both Commentaries significantly shaped the content of the Geneva Conventions and the Additional Protocols. The Guidance and the new Commentaries indicate that, nowadays, the icrc has less influence on the development of ihl through interpretations and law-​ascertainments. An exception to this is the Study, which was able to fill the loopholes in ihl due to the extensive amount of collected state practice it relied upon. Fifth, the icrc’s interpretations and law-​ascertainments not only impact the meaning and acceptance of individual rules of ihl, but also the structural rules of international law. This impact can mainly be observed for the methodology for the identification of customary international law. It can also be observed for the methodology for the interpretation of treaty-​based ihl. Effects of this impact are, among others, the inclusion of non-​state actors and the prevention of a special position for dominant states in formal law-​making processes. Yet, the impact on the structural rules of international law cannot be observed for the first generation of the Commentaries. Rather, it is limited

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to the newer outputs of the icrc. This implies that the icrc fills a new role for international law since the publication of the Study in 2005. Sixth, the considerable de facto authority of the icrc’s interpretations and law-​ascertainments receives only limited recognition in the way positive international law governs their usage. While it can be argued that the icrc’s outputs constitute subsidiary means under Article 38 (1) (d) icj Statute and supplementary means under Article 32 vclt, this classification is subject to contestation in state practice and legal doctrine. This contestation is, for instance, reflected in the recent conclusions of the International Law Commission on subsequent agreements and subsequent practice and on the identification of customary international law. It is evident that states want to maintain their supremacy in the making of international law and do not want to assign legal significance to the impact of non-​state actors such as the icrc. Overall, from the examination of the role of the icrc’s interpretations and law-​ascertainments for ihl it follows that, currently, the elements of the classical type of international law seem to be strengthened for ihl. Through the first generation of the Commentaries and the Study, the icrc shaped the content of the Geneva Conventions and Additional Protocols and created new rules of customary ihl. These outputs enjoyed a special status in legal practice and academia comparable to treaties and, thus, challenged the foundations of the classical type of international law. Thus, for a long time, the icrc –​through its outputs –​was a driving force for the making of ihl. In contrast, the Guidance and the new Commentaries do not enjoy a special status. They serve as an impulse for discussions on direct participation in hostilities and bring together divergent viewpoints from academia and legal practice under the Geneva Conventions. However, they hardly shape the content of, or create new rules of, ihl. In this context, the Study seems to present a turning point. After its success, the states and the International Law Commission started to strengthen the foundations of the classical type of international law with regard to ihl and international law in general. They re-​established the primary role of states for the making of international law and downplayed the role of non-​state actors and, in particular, the role of the icrc. This raises the question of the future role of icrc’s interpretations and law-​ascertainments for ihl. 2

The Future Role of the icrc’s Interpretations and Law-​Ascertainments

It can be assumed that no new comprehensive treaties on ihl, or a revision of the Geneva Conventions, will be concluded in the foreseeable future. Only

312 Conclusion smaller treaties with a limited object of regulation and few contracting parties will be added to the existing normative framework,2 a development that can be witnessed since the conclusion of the Additional Protocols.3 Reasons for this include, among others, the comparably high number of states in present international system, which makes negotiations nearly impossible,4 and that a general revision of treaty-​based ihl would probably endanger many existing legal standards.5 At the same time, legal and factual developments consistently call for new answers from ihl. The fifth report on ihl and the challenges of contemporary armed conflicts, drafted by the icrc for the 33rd International Conference of the Red Cross and Red Crescent, gives an impression of how many urgent questions (still) need to be answered so as to provide effective protection for victims of armed conflicts. This report, inter alia, mentions certain new technologies of warfare and the applicability of ihl to states fighting ‘terrorism’ and non-​state armed groups designated as ‘terrorists’.6 While those challenges to ihl would benefit from legal clarification through agreements between the states, they frequently involve contentious issues that not all states may want to clarify –​ preferring a certain degree of ambiguity so as to enjoy operational freedom in armed conflicts.7 Consequently, the interpretation of existing treaty law and the ascertainment of new rules are likely to remain the only possibility to provide answers to new challenges for ihl.8

2 E.g., currently, in civil society a treaty to ban lethal autonomous weapons is called for, see accessed 1 August 2023. 3 E.g., 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 (adopted 10 October 1980, entered into force 2 December 1983) 1342 unts 137; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on Their Destruction (adopted 18 September 1997, entered into force 1 March 1999); Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017) c.n.475.2017.treaties-​x xvi.9. 4 Sassòli, International Humanitarian Law, para. 4.30. 5 Ibid, para. 4.31 (‘I think that Common Article 3 would today no longer be included into generally revised treaties on ihl’). 6 icrc, International humanitarian law and the challenges of contemporary armed conflicts, October 2019, 33ic/​19/​9.7 accessed 1 August 2023. 7 Sassòli, International Humanitarian Law, para. 4.30. 8 For a discussion of the advantages and disadvantages of the informalisation of international law, see H. Krieger and G. Nolte, ‘The International Rule of Law –​Rise or Decline? Approaching Current Foundational Challenges’, in H. Krieger, G. Nolte and A. Zimmermann (eds.), The International Rule of Law (oup, 2019), p. 11.

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However, since an increasing number of actors are offering their interpretations and law-​ascertainments,9 and the role of the icrc is put under pressure by states, the question is what future role the icrc can play in this context. It is very likely that the icrc continues to be a unique actor in the field of ihl. It has been providing humanitarian aid for over 150 years, it carries out its missions in all armed conflicts all over the world, it exchanges information with states and non-​state armed groups and thus knows of the application and challenges of ihl in the field.10 At the same time, it has been involved in the development of modern ihl since its inception.11 This involvement is today institutionalised with the International Conference of the Red Cross and Red Crescent in particular, which brings together the state parties to the Geneva Conventions and the components of the Movement every four years,12 but also by its observer status in international organisations.13 The International Conference offers the icrc the opportunity, for instance through its challenges reports, to address the thematic areas for which it considers development necessary; and to anticipate the extent to which states are willing to develop ihl. Depending on the willingness of states, the Conference can initiate or enhance expert processes, possibly involving or even led by states. For instance, the 2007 report on the challenges for ihl called for attention on the necessity to regulate private military and security companies and a joint icrc/​Swiss initiative,14 which culminated in the Montreux Document.15 Likewise, several reports in preparation of the past International Conferences of the Red Cross and Red Crescent have highlighted the need to strengthen compliance with ihl.16 Given this 9 10 11 12 13 14 15 16

For an analysis of the various expert processes on ihl, see e.g. Petrov, Expert Laws of Wars. For a detailed overview of the icrc’s humanitarian aid in the field, see Forsythe and Rieffer-​Flanagan, The International Committee of the Red Cross, pp. 54–​74. For a detailed overview of the icrc’s involvement in the development of treaty-​based ihl, see ibid, pp. 38–​53. For more information on the International Conference of the Red Cross and Red Crescent, see e.g. F. Bugnion, ‘The International Conference of the Red Cross and Red Crescent: Challenges, key issues and achievements’ (2009) 91(876) irrc 675–​712. For more information on the icrc’s observer status in international organisations, see e.g. C. Koenig, ‘Observer Status for the International Committee of the Red Cross at the United Nations: A Legal Viewpoint’ (1991) 31(280) irrc 37–​48. icrc, ‘International humanitarian law and the challenges of contemporary armed conflicts’, October 2007, 30ic/​07/​8.4 accessed 31 August 2023, pp. 24–​8. Swiss Federal Department of Foreign Affairs and icrc, The Montreux Document. icrc, ‘International humanitarian law and the challenges of contemporary armed conflicts’, September 2003, 03/​ i c/​09 accessed 31 August 2023, pp. 20–​5; icrc, ‘International humanitarian law and the challenges of contemporary armed conflicts’,

314 Conclusion context, the icrc was invited by the International Conference ‘to pursue further research, consultation and discussion in cooperation with States, and, if appropriate, other relevant actors’.17 This, inter alia, prepared the ground for the guidelines on investigating violations of ihl18 and the roots of restraints in war.19 No other non-​state actor enjoys the icrc’s authority and impact upon ihl. Furthermore, there is currently no sign that another actor will assume this role from, or in addition to, the icrc. Accordingly, it is to be expected that the icrc remains the primary guardian and promoter of ihl, and its interpretations and law-​ascertainments will generally continue to enjoy some degree of authority. However, as analysed for the Commentaries, the Study and the Guidance, authority is dynamic in nature:20 ‘It can be gained, it can be lost. It can increase, it can decrease over time. Nothing is set in stone.’21 In order to ensure the highest possible authority for its interpretations and law-​ascertainments, the icrc must comply with certain standards and take account of their changes.22 This means, that the icrc must avoid solo attempts, as had happened with the Guidance, for the expert processes underlying the interpretations and law-​ ascertainments. These do not only harm the reliability of the output in question, but may also negatively affect the icrc’s authority and the acceptance

October 2007, 30ic/​07/​8.4 accessed 31 August 2023, pp. 30–​3; icrc, ‘Strengthening legal protection for victims of armed conflicts’, October 2011, 31ic/​11/​ 5.1.1 accessed 31 August 2023; icrc and Swiss Federal Department of Foreign Affairs, ‘Strengthening Compliance with International Humanitarian Law Concluding Report’, October 2015, 32ic/​15/​19.2 accessed 31 August 2023. 17 31st International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening legal protection for victims of armed conflicts, Geneva, 28 November-​1 December 2011, reprinted in: Resolutions (2012) 94(885) irrc 355–​415 at 379–​81. 18 N. Lubell, J. Pejic and C. Simmons, Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice (icrc and Geneva Academy, 2019). 19 B. McQuinn and F. Terry, The Roots of Restraint in War (icrc, 2018). 20 See Chapter 2, at 6. 21 L. Boisson de Chazournes, ‘The International Law Commission in a Mirror: Forms, Impact and Authority’, in The United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (brill, 2020), p. 153. 22 In this context, see H. Krieger, ‘Cynicism as an Analytical Lense for International Law?’, p. 357 (‘Lawyers need to know “how the political context changes in which legal rules come into existence, change, or cease to exist; much like the weather affects the growth and blossoming of plants”’).

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of its interpretations and law-​ascertainments as a whole.23 However, the icrc seems to have learned from the experience of the Guidance. For controversial topics, the icrc applies the Chatham House Rule from the outset making it clear that the results of the expert processes will not be published as such, and they only serve to inform the legal position then published by the icrc.24 Cooperation with external experts and other institutions is sought.25 In addition, the icrc is broadening its expert processes to involve experts from all over the world.26 In general, the icrc endeavours to establish links in all parts of the world and, in particular, with emerging powers –​such as China27 –​who are beginning to take an interest in the development of ihl. This strategy will probably lead to an increased acceptance of the icrc’s interpretations and law-​ascertainments universally. The icrc should demonstrate that it complies with the most accepted standards to avoid criticism with regard to the methodology used for its interpretations and ascertainments of ihl.28 Cooperation with recognised authorities on the methodology in question –​for instance, such as that accomplished in the review process with Georg Nolte for the new Commentaries’ introduction –​ seems promising given the low level of criticism of the new Commentaries’ underlying methodology in the initial reactions from legal scholars. Overall, the icrc should not overstretch its interpretations and law-​ ascertainments, as was the case with the SIrUS project or the Guidance. Such projects can potentially do more harm than good.29 For example, the 23 24 25 26 27

28 29

E.g. by criticising the Study to undermine states’ will, some authors extended their criticism to the ap Commentary, see Casey and Rivkin, ‘Double-​Red-​Crossed’. See e.g. G. Gaggioli, The Use of Force in Armed Conflicts, pp. iv–​x ii, 2; L. Gisel, The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (icrc and Université Laval, 2016), pp. 5–​6. E.g. the guidelines on investigating violations of ihl were elaborated in cooperation with the Geneva Academy, see Lubell, Pejic and Simmons, Guidelines on Investigating Violations of International Humanitarian Law. E.g. for the guidelines on investigating violations of ihl out of 73 experts, 14 experts came from non-​western countries, 11 experts from international organisations or ngo s, see ibid, pp. 64–​6. See e.g. icrc, ‘China: Experts renew commitment to Geneva Conventions during seminar to mark 70th anniversary’, 7 September 2019 accessed 31 August 2023. See also with regard to human rights treaty bodies the analysis by Ulfstein, ‘Law-​making by human rights treaty bodies’, p. 257. Cf. also Baade, Mührel and Petrov, ‘Concluding Observations’, pp. 236–​7; A. von Bogdandy, ‘Book Review: Emmanuelle Jouannet, Hélène Ruiz Fabri, and Jean-​Marc Sorel (eds). Regards d’une génération sur le Droit International’ (2009) 20(3) ejil 919–​22 at 921.

316 Conclusion continuous combat function concept is, in legal practice, applied in its temporal dimension because it grants a large amount of temporal freedom in the targeting of individuals. Meanwhile, at the same time, the personnel dimension of the continuous combat function concept, as well as the graduated use of force standard, are rejected due to their limitations on operational freedom. This partial rejection of the continuous combat function concept is certainly contrary to the icrc’s intention. The icrc must combine pragmatism and ideological aspects of humanitarianism in order to ensure it produces outputs that are broadly accepted.30 ihl is not only intended to protect the individual, but also to enable states to wage armed conflicts effectively.31 If demands of effective warfare are not sufficiently taken into account, interpretations and law-​ascertainments, which aim to adapt ihl to new challenges, will not find broad acceptance by military experts and states involved in armed conflicts. This requires that as much legal certainty as is possible must be obtained, since members of armed forces have a strong interest in knowing exactly what the law requires from them in armed conflicts in order to avoid liability for disciplinary sanctions or criminal prosecution.32 Finally, the icrc should refrain from directly or indirectly emphasising the legal relevance of its interpretations and law-​ascertainments based on its role under the Geneva Conventions, the Additional Protocols and the Statutes of the Red Cross and Red Crescent Movement. The Pictet Commentaries and the ap Commentary have found strong acceptance in academia and legal practice without doing so. As analysed above,33 the acceptance of the icrc’s interpretations and law-​ascertainments is not primarily based on a legal status. On the contrary, the emphasis on their legal relevance might endanger the icrc’s position to interpret and ascertain ihl when states subsequently feel it necessary to emphasise their primary role in the making of ihl, and to downplay the icrc’s impact as non-​legal. This may weaken the icrc’s position by giving (potential) users of the icrc’s outputs the impression that they are to be used with caution; and are at the same non-​legal level as opinions of other non-​state actors. Rather, reference should be made to the recognition of the

30

This was, for instance, positively mentioned for the first generation of icrc Commentaries, see Fryer, ‘Book Review’, 129. Cf. also Moorehead, ‘A Pluralist Vision’, p. 230. 31 G. Corn and others, ‘Belligerent Targeting and the Invalidity of a Least Harmful Means Rule’ (2013) 89 ils 536–​626 at 541. 32 Cf. the criticism of the Guidance in Chapter 2, at 4.1. Cf. also ibid, pp. 540–​1, 610. For a more detailed discussion of the balance between aspects of humanitarianism and demands of effective warfare, see Baade, Mührel and Petrov, ‘Concluding Observations’, pp. 238–​9. 33 See Chapter 2.

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icrc’s traditional and unique role in humanitarian aid in times of armed conflict under the Geneva Conventions and Additional Protocols; and, with regard to the Statutes of the Movement, to the icrc’s ‘political’ mandate to work for the understanding and dissemination of knowledge of ihl, and to prepare any development thereof. 3

How the icrc’s Interpretations and Law-​Ascertainments Should Be Dealt with in Academia and Legal Practice

After analysing what the icrc might do to ensure the highest possible authority for its outputs, the question remains of how legal scholars and practitioners should deal with them. In principle, the icrc’s recent interpretations and law-​ascertainments meet the criteria by which ‘correctness’ is measured today. They involve many experts from different parts of the world and different branches of international law. They seek to reconcile different interests and they are based on a large and precise compilation of state practice. Additionally, they generally take into account the most recognised methodological standards. However, they should not be relied upon blindly.34 The reactions in academia and legal practice must be considered, in particular, when relating to proposals ranging from de lege lata to de lege ferenda. Many of the concerns expressed are generally well substantiated, regardless of whether they concern the underlying process, the methodology, or the interests of the military with regard to practicability in the field or the consideration of human rights standards. Nevertheless, criticism of the icrc’s interpretations and law-​ascertainments should be carefully formulated. While certainly not free to interpret and ascertain ihl from scratch, the icrc cannot be limited to what has already been said. Otherwise, hardly any development of ihl, save by treaty amendment or compellingly clear state practice would be possible.35 This concern must be taken into account when responding to the icrc’s outputs. The criticism must remain objective and adhere to the standards of academic discourse when published as academic contributions. Polemical discreditations arising out of injured vanity because their own suggestions did not find resonance

34 35

With regard to the works of the International Law Commission, cf. Boisson de Chazournes, ‘The International Law Commission in a Mirror’, p. 153. Cf. Baade, Mührel and Petrov, ‘Concluding Observations’, p. 238.

318 Conclusion in the expert processes organised by the icrc,36 contributions published for their own sake, unrealistic demands for considerations of human rights standards and contributions solely paying lip service to government positions are unhelpful.37 On the contrary, they may slow down the development of ihl as necessary to close legal gaps and to avoid legal uncertainty. As demonstrated in Chapter 2, especially in the case of the Study and the Guidance, criticism by legal scholars affects the acceptance of the icrc’s interpretations and law-​ascertainments. Overall, the onus lies especially with states to openly and comprehensively react to the icrc’s outputs, if at all. Silence,38 or speaking only in private capacity39 –​while downplaying the icrc’s influence –​contributes to legal uncertainty and leaves legal practitioners without effective means to deal with challenges of ihl. Due to a lack of alternatives, the icrc’s interpretations and law-​ascertainments will nevertheless be considered as the state of the law,40 although potentially with doubts about their correctness, which in turn may undermine the authority of ihl. States should do justice to their role as primary actors in the development of ihl. This means, on the one hand, seriously addressing challenges of ihl, such as improving compliance with it. On the other hand, it means responding to the propositions of the icrc and other actors, which means exercising criticism in both a negative and positive sense. Only in this way can a pluralistic ihl dialogue be facilitated that tests, updates and enriches the balance between considerations of military necessity and humanity when developing ihl, and provides for legal certainty.41

36

See in this regard the discussion of the Guidance in the nyu Journal of International Law and Politics and in particular the contribution by Parks, ‘No Mandate, No Expertise, and Legally Incorrect’. But see also the reactions to the Study in Chapter 2, at 3.1. 37 Cf. also the general criticism of academic contributions on ihl in Sassòli, International Humanitarian Law, paras. 4.78–​4.80. 38 For criticism, see e.g. Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 174. 39 For criticism, see e.g. Sassòli, International Humanitarian Law, para. 4.83 (proposing that ‘[s]‌uch statements can nevertheless be seen as reasonably reflecting the positions of their armed forces (which are generally reluctant to officially take a position because this could tie their hands), and this is precisely the reason why such persons are invited ‘in their private capacity’ to expert meetings’). 40 Cf. Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 183; Marsh and Glabe, ‘Time for the United States to Directly Participate’, 6. 41 Schmitt and Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, 215.

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Index actus reus 113, 113n348, 114 ad hoc tribunals 73, 84, 116, 117, 117n371, 123 Amnesty International 173 authorship 31, 87, 91, 127, 129, 211n1034, 227, 228, 310 Baxter paradox 259 Bosnia and Herzegovina 164 Canada 182 China 14n77, 16, 23, 23n121, 24, 315 civilians 67, 68, 95, 99n280, 106, 107, 107n324, 108, 109, 111, 111n339, 112, 116, 136, 180, 181, 183, 184, 186, 187, 189, 193, 196n932, 197, 199, 201, 290, 291, 303n140 civilian hostages 69 civilian population 60, 68n81, 95, 106, 106n319, 108, 109, 139, 147, 148, 302, 303n140 Cold War 8, 15, 16, 122, 232, 234n1162 Colombia 164 combatants 108, 109, 180, 302, 303n140 Common Article 1 76, 213, 214, 217, 219, 220, 221, 222, 228, 291 Common Article 2 56, 59, 62, 216n1066, 219, 221 Common Article 3 10, 20n106, 55, 57, 59n31, 68n84, 72n107, 74n117, 75, 86, 89, 105, 106, 109, 109n330, 114, 116, 161n689, 164n703, 180n804, 195, 198, 215n1050, 215n1051, 217, 218, 219, 221, 221n1090, 223, 236n1173, 267, 268, 269, 278, 312n5 competence 5, 13, 16n87, 18, 19, 20, 24, 28, 29, 32, 32n57, 33, 34, 35, 36, 37, 39, 40, 44n127, 45, 45n132, 46, 47, 48, 49, 52n170, 53, 91, 129, 294, 309 compliance 17, 17n88, 27, 27n9, 49n150, 51, 51n162, 51n163, 52, 76, 103, 138, 213, 214n1048, 219, 229, 260n126, 286, 306, 313, 318 continuous combat function 22n115, 180, 181, 182, 183, 184, 186, 188, 189, 191, 193, 197, 198, 198n942, 201, 201n956, 202, 203, 204, 206, 206n997, 210, 316 crimes against humanity 56, 64, 68, 71, 95, 111, 116

Denmark 159, 171, 177 diplomatic conference 1, 2, 9, 36, 92, 93, 112, 116, 122, 123, 128, 129, 138, 158 1949 diplomatic conference 54 Final Records of the 1949 Diplomatic Conference 79 direct participation in hostilities 3, 95, 109, 110, 116, 125, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 193, 194, 197, 199, 201, 202, 203, 204, 207, 211, 212, 231, 311 dominant states 8, 15, 16, 16n82, 17, 19, 279, 310 emerging powers 16, 315 Eritrea-​Ethiopia Claims Commission 149, 152 European Convention on Human Rights 139 European Court of Human Rights 5n25, 21, 139, 149, 219, 239, 294n81 expert treaty bodies 31n49, 264, 296, 297, 297n100, 298n105, 299, 300 First World War 42 form 39, 89, 91, 128, 141, 176, 178, 183, 188, 189, 210, 211, 226, 227, 228 fundamental principles of the Red Cross and Red Crescent Movement 51 general principles of law 271, 289, 290, 300 Germany 82n174, 123, 127n452, 159, 162, 177, 203, 271n192, 297n102 good faith 45n132, 292n69 graduated use of force 181, 183, 187, 188, 189, 196, 200, 202, 203, 204, 205, 208, 316 grave breach 65n55, 67, 68n84, 71, 112, 113n347 grave breaches 20n106, 60, 65, 218 guardian and promoter of ihl 4, 33, 35, 224, 314 human rights law 139, 170n742, 184, 187, 204n984, 235, 235n1167, 236, 237, 238, 238n1186, 269n179, 286 human rights lawyers 206 Human Rights Watch 173, 225

358 Index humanitarian aid 35, 36, 41, 47, 162n691, 313, 313n10, 317 Humanity 37n85, 190n878, 197n934, 202n967, 206n998, 243n15 Hungary 81 icrc archives 139, 168, 223 impartiality 51, 173, 208 independence 7n33, 30, 51, 52, 92, 173 India 17 inhuman treatment 65, 65n55, 66, 115 Institut de Droit International 288, 288n48 Inter-​American Court of Human Rights 21, 150 International Conference of the Red Cross and Red Crescent 39, 44, 130, 131, 143, 149, 156, 172, 228, 312, 313 International Court of Justice 21, 78, 81, 89, 94, 119, 121, 132, 133, 135, 149, 158, 164, 166, 169, 177, 213, 226, 237, 243, 246, 252, 253, 259, 270, 271, 287, 288, 292 International Criminal Court 21, 58, 61, 75, 85, 95, 105, 109, 111, 148, 194, 195n923, 217, 219, 223, 227 Rome Statute 15n80, 20n106, 95, 95n253, 99n280, 102, 109n330, 111, 148, 194, 194n919, 195, 217, 218, 219 international criminal law 72, 74, 83, 84, 91, 109, 116, 117, 123, 124, 130, 150, 193, 195, 260, 269 International Federation of the Red Cross and Red Crescent Societies 39n94, 42, 225 League of the Red Cross Societies 42 International Law Association 133, 177, 237, 244, 256, 262, 288 international legal scholarship 11, 27, 28 international humanitarian law scholars 18, 232, 234, 238, 239 international humanitarian law scholarship 233n1154, 310 law of armed conflict scholars 234, 238, 239 Russian legal scholars 246 US legal scholars 246 international organisations 4, 7, 8, 18, 33, 34, 43, 44, 45, 133, 157, 167, 170, 175, 235, 250, 252, 255, 256, 258, 259, 282, 283, 284, 286, 294, 296, 298, 304, 305, 307, 313 international public authority 28 international relations 7n34, 27

Israel 81, 121, 144, 159, 160, 161, 162, 171, 172, 177, 198, 204, 230, 255 Jean Pictet 54, 87, 88, 90, 92, 127, 227, 228, 310 law of armed conflict 178, 200, 202, 220 law-​making 8, 9, 12, 17, 240, 279, 310 League of Nations 41 Covenant of the League of Nations 271 legal personality 33, 33n60, 34n66, 34n70, 157, 250, 282, 285, 286 Lotus principle 6n33, 303, 304 Magen David Adom 173, 174 mandate 4, 34, 35, 36, 37, 38, 39, 40, 41, 47, 48, 49, 131, 143, 156, 174, 191, 208, 224, 250, 285, 287, 288, 300, 317 Martens Clause 25, 143, 281, 291, 301, 302, 303, 304 mens rea 69, 111, 112, 113, 114, 115 military manual 20, 22, 50, 78, 80, 110, 119, 121, 136, 146, 147, 158, 163, 181, 201, 248, 257 Colombian military manual 201, 204 Danish military manual 161, 166n716, 201 DoD Manual 78, 79, 80, 84, 91, 119, 120, 124, 125, 127, 129, 130, 155, 158, 161, 166, 195, 196, 197, 202, 268 French military manual 80, 119, 121, 124, 202, 221 German military manual 22n115, 161, 200 Malian military manual 201 MoD Manual 78, 79, 80, 84, 119, 121, 124, 165, 268 military necessity 71, 181, 183, 187, 196, 200, 201, 204, 237, 238, 318 National Red Cross and Red Crescent Societies 39n94, 225, 273 neutrality 6, 11, 51, 52, 91, 130, 173, 208 non-​governmental organisation ngo 1, 18, 138, 154, 157, 167, 173, 181, 205, 252, 284, 296 occupation 56, 59, 60, 81, 90 Occupying Power 61, 71 organised armed groups 105, 180, 181, 183, 184, 186, 188, 198, 198n942, 216 persistent objector 17, 133, 138, 255, 259

Index

359

positivism 6, 7, 15 preparatory work 93, 122, 265, 271, 272, 272n196, 273, 274, 276, 295, 300 principle of effectiveness 32, 32n58 principle of estoppel 45 prisoner of war status 79, 81 protecting power 35, 36

superior responsibility 95, 97, 99, 99n280, 100, 101, 102, 117 supplementary means of interpretation 265, 266, 267, 268, 274, 281, 295, 296, 297, 300, 304 Sweden 165 Switzerland 52, 53, 271n192, 283, 309

reputation 31, 88, 89, 129, 178, 208, 211 revolving door of protection 181, 186, 196 Rules of Procedure of the International Red Cross and Red Crescent Movement 39, 39n96, 41n108 Russia 14n77, 16, 16n87, 247

the Netherlands 164, 220 the Philippines 165 tradition 91 travaux préparatoires 55, 77, 79, 83, 84, 91, 93, 118, 121, 123, 124, 129, 130, 181, 279, 290n57, 295, 301, 304 Turkel Commission 160, 199 type of international law 6, 8, 12, 14, 15, 17, 18, 19, 20, 179, 305, 308, 311

Second World War 8, 9n48, 36, 43, 55, 55n15, 72, 84, 91, 95, 97, 101, 116 post-​Second World War jurisprudence 95, 97, 101 Secondary rules 17 soft law 19, 138n527, 308 South Africa 165 sovereignty 14n77, 138, 305n148, 306 Soviet Union 16n87 Special Court for Sierra Leone 21, 64, 95, 111, 148, 193, 217, 218 Statute of the Special Court for Sierra Leone 95, 96, 109, 111 specially affected states 17, 19, 133, 138, 154, 156, 158, 159, 159n674, 242, 248, 253, 258 status agreements 47, 47n139 Statutes of the Red Cross and Red Crescent Movement 4, 5, 18, 24, 34n68, 37, 38, 39, 40, 41, 44, 46, 47, 48, 49, 52, 131, 157, 174, 191, 208, 224, 225, 285, 294, 317 structural rules 19, 20, 25, 179, 228, 240, 241, 262, 279, 308, 310 subject of international law sui generis 4, 18, 33, 33n60, 35 subsequent practice 34, 48, 49, 226, 237, 241, 263, 264, 265, 266, 267, 268, 269, 271, 273, 274, 276, 278, 293, 294, 296, 297, 298, 299, 304, 307, 311

UK 81, 119, 121, 159, 160, 162, 171, 177, 182, 199, 200 underlying expert process 183, 188, 209, 211, 225, 227, 236, 238, 239 United Nations 35n70 Charter of the United Nations 94, 162n690, 271 UN General Assembly 110, 136, 154, 159, 163, 165, 166, 304 US 15, 16, 17, 18, 80, 81, 90, 120, 121, 123, 147, 153, 154, 155, 156, 158, 159, 161, 166, 168, 171, 173, 174, 177, 179, 182, 186, 195, 196, 197, 198, 202, 203, 204, 209, 219, 220, 230, 244, 246, 248, 250, 257, 259, 260, 261, 262, 279, 288, 289, 298 vclt 4, 20, 25, 39, 55, 94, 213, 226, 237, 241, 262, 264, 265, 266, 267, 268, 269, 271, 272, 273, 274, 276, 277, 278, 281, 290, 292, 293, 294, 295, 296, 298, 299, 300, 301, 304, 311 war crimes 56, 64, 68, 69, 70, 71, 95, 111, 116, 217, 218 War on Terrorism 173