2 Scope of Application of International Humanitarian Law
Jann K Kleffner
Edited By: Dieter Fleck
- Military necessity — Armed conflict, international — Armed conflict, non-international — Occupation — Ius ad bellum — Belligerents
1. International humanitarian law regulates, and as a rule1 applies in times of, armed conflicts. Accordingly, it is also referred to as the law of armed conflict or jus in bello. The three interchangeable terms denote the only branch of public international law that is specifically intended to preserve humanitarian values during armed conflicts by protecting those who do not or no longer directly participate in hostilities and by limiting the right of parties to the conflict to use armed force only to the amount necessary to achieve the aim of the conflict, which is to weaken the military potential of the enemy. International humanitarian law is not concerned with the legality of the armed conflict (see also below Section 206). Instead, it reflects the reality of organized armed violence, unleashed by states or by organized armed groups, and regulates what parties to an armed conflict may or may not do in the course of an armed conflict. International humanitarian law rests upon a balance between humanitarian concerns and considerations of military necessity. Each and every rule of this branch of law reflects that balance. As a branch of public international law, it is primarily states that determine how the balance between humanitarian concerns and considerations of military necessity is struck. That determination is articulated in the course of the lawmaking process. Thus, when negotiating international conventional humanitarian law, in the course of customary law formation through state practice and opinio juris, through the development of general principles of international humanitarian, and by virtue of other legally binding sources (such as unilateral declarations and binding resolutions of international organizations), states identify what they consider to be the acceptable balance between humanitarian concerns and considerations of military necessity. Naturally, such a state-centric lawmaking process does not take place in isolation, but is informed by non-state constituents, such as humanitarian and civil society organizations, not the least the International Committee of the Red (p. 44) Cross (ICRC) with its express mandate to promote and act as guardian of international humanitarian law.
2. While international humanitarian law is the only branch of public international law that specifically regulates situations of armed conflicts, it does not automatically supersede all other areas of public international law in the event of an armed conflict. The move from the formal notion of ‘war’ in the legal sense—predicated by a declaration of war—to the objective, fact-driven notion of ‘armed conflict’ has brought with it the gradual abandonment of the traditional rigid distinction in international law between the state of peace and the state of war.2 Today, the outbreak of an armed conflict will not necessarily mean that all other rules of international law cease to apply. See below, Sections 246–256.
1. In the words of the Geneva Conventions, the law of international armed conflict applies to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’.6 The ICRC Commentary further explains that ‘any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict’.7 Similarly, the ICTY has held that an international armed conflict exists whenever there is ‘resort to armed force between States’.8 These views adhere to the so-called ‘first-shot’ theory, according to which the law of international armed conflict applies from the first moment that force is used by one state against another state. It is irrelevant, References(p. 45) according to that view, what form that force takes or what its intensity or duration is.9 An alternative view to the ‘first-shot’ theory holds that any armed conflict, including those that occur between two or more states, requires the parties to it to be ‘engaged in fighting of some intensity’.10 According to the latter view, not any resort to armed force between states would suffice. ‘Border clashes’, for instance, would not amount to an international armed conflict,11 nor would, presumably, the singular abduction and subsequent detention of a member of the armed forces of one state by (members of the armed forces of) another state. It is submitted, however, that this latter view requiring a certain level of intensity for the resort to armed force between states to amount to an international armed conflict bears the risk of creating an international legal vacuum or of depriving certain categories of persons of the protections that international humanitarian law provides. One fails to see, for instance, what international legal parameters would govern the conduct of hostilities during a border clash between two states. And a member of the armed forces of a state captured by another state would be deprived of the rights and privileges granted to prisoners of war under conventional and customary international humanitarian law.12 While the better view thus is to adhere to the ‘first-shot’ theory and consider an international armed conflict to exist to which international humanitarian law applies as soon as there is resort to armed force between states, it is ultimately the facts on the ground that determine the extent to which international humanitarian law becomes operable. A minor incursion by the armed forces of one state into another state, for instance, will not bring into operation the whole plethora of rules of international humanitarian law. Rather, the factual circumstances of a military operation amounting to an international armed conflict will determine which of the rules are practically relevant and, as a consequence, the extent to which the law becomes operable. If, during such an operation, no member of the opposing armed forces is captured the law pertaining to prisoners of war will not become operable. Pivotal in that regard is, however, that the reason for the inapplicability is purely factual rather than legal, namely that the facts are such that the preconditions for the operation of the law pertaining to prisoners of war are absent. As soon as a member of the opposing armed forces falls into the power of the enemy, s/he becomes a prisoner of war entitled to the full protection that international humanitarian law grants to that category of persons.
2. The existence of an international armed conflict is a question of fact and is independent of the subjective views of the parties to the armed conflict. As a matter of law, it is irrelevant whether the warring states consider themselves to be engaged in an armed conflict, even less so whether they formally acknowledge the existence of a state of armed conflict or war. The adoption of the Four Geneva Conventions of 1949 marked a significant shift away from formal preconditions for the applicability of international humanitarian law to a fact-based approach (see further Section 203).
205 The application of international humanitarian law pertaining to international armed conflicts is not affected by whether or not the parties to an armed conflict recognize one another as states (Article 13, para. 3, GC I; Article 13, para. 3, GC II; Article 4 A, para. 3, GC III; Article 43, para. 1, AP I).
1. The applicability of the rules of international humanitarian law regulating international armed conflicts is not dependent upon whether the parties to a conflict recognize one another as states. As a consequence of the fact-driven notion of an armed conflict—as References(p. 48) opposed to a subjective approach to the existence of it—several rules expressly stipulate, for example, that the protection granted to the wounded, sick, and shipwrecked, as well as the protection of prisoners of war, equally extends to those ‘who profess allegiance to a Government or an authority not recognized by the Detaining Power’.27 Similarly, AP I includes into the notion of ‘armed forces of a Party to a conflict’ those organized armed forces, groups, and units which are under a command responsible to a party for the conduct of its subordinates, even if that party is represented by a government or an authority not recognized by an adverse party.28 The underlying principle is also borne out by the practice of states that participated in international armed conflicts in which AP I was inapplicable. Thus, throughout the Arab–Israel conflict, the Arab states did not recognize Israel as a state,29 yet both sides in that international armed conflict have accepted the applicability of international humanitarian law.
206 The application of international humanitarian law does not depend on whether an armed conflict has been started in violation of a provision of international law regulating the use of force (jus ad bellum). International humanitarian law applies equally to all the parties to an armed conflict irrespective of the legality or illegality of their resort to force.
1. The legality or otherwise of an armed conflict under the law regulating the recourse to the use of armed force is irrelevant for the applicability and interpretation of international humanitarian law. International humanitarian law applies equally to all parties to an armed conflict, irrespective of whether an armed conflict is waged in compliance or in violation of the general prohibition of the use of force embodied in the UN Charter30 or any of the recognized exceptions to that prohibition, that is the right to use force in self-defence against an armed attack31 and the right to use force with authorization of the Security Council acting under Chapter VII of the Charter.32 Acts of members of the armed forces participating in an illegal use of armed force are subject to the same constraints under international humanitarian law as those of their opponents. Although international law is agnostic as regards the legality of the use of force within—as opposed to between—states, the separation between the cause for initiating a non-international armed conflict and the applicable rules of international humanitarian law applies mutatis mutandis.33
207 During an international armed conflict, the law of neutrality shall be applied to the relations between the belligerent parties and states not participating in the conflict (Article 2 HC III; see below, Chapter 11).
1. Prior to the shift from formal preconditions for the applicability of international humanitarian law to a fact-based approach, the law of neutrality was only triggered between neutral powers and belligerent states in case of a formal declaration of war made by the belligerent states. Some support persists in academic writings for the view that the law of neutrality applies only if there is a formal state of war.36 There is also evidence that a number of states take the same view.37
209 In a non-international armed conflict, each party shall be bound by the applicable conventional and customary international humanitarian law. Regular armed forces should comply with the rules of international humanitarian law in the conduct of military operations in all armed conflicts, however such conflicts are characterized (see below, Chapter 12).
1. Two basic requirements condition the existence of a non-international armed conflict: the armed violence must be of sufficient intensity and the parties must be sufficiently organized. The following are indicative factors in assessing whether the requirement of intensity is satisfied: the number, duration, and intensity of individual confrontations; (p. 50) the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.39 As far as the requirement of organization is concerned, the following factors are relevant: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits, and military training; its ability to plan, coordinate, and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as ceasefire or peace accords.40 The aforementioned factors for determining the intensity of the armed violence and the organization of the parties to it must not be understood as a conclusive checklist, however. Rather, they are guidelines in distinguishing non-international armed conflicts from situations in which violence occurs that does not rise beyond internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.41 Such instances of lesser violence are not considered armed conflicts. While there is thus a need to distinguish non-international armed conflicts from internal disturbances and tensions on the lower end of the spectrum, non-international armed conflicts on the higher end of the spectrum may reach the threshold for the applicability of AP II. This is the case when the armed conflict ‘take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.42 This latter requirement of territorial control distinguishes non-international armed conflicts under AP II from other non-international armed conflicts. Furthermore, AP II does not apply to non-international armed conflicts in which organized armed groups are pitted against each other, without the state being a party to the armed conflict.
2. As already alluded to (see above, Section 201, para. 3), the distinction between international and non-international armed conflicts rests on the question who the parties to the armed conflict are. The fact that an armed conflict is not limited to the territory of a single state does not mean, without more, that a non-international armed conflict changes its character and is to be considered international.43 In that sense, ‘non-international’ is not to be equated with ‘internal’. This is not to suggest, however, that prima facie non-international armed conflicts may in certain cases be rendered international in character, for instance when the control exterted by a state over an organized armed group fighting another state is such that the conflict is to be considered as occurring between the two states. For further discussion, see Section 1201.
References(p. 51) 3. The attacks on the US in September 2001 led the then US Administration to refer to a ‘war against terrorism’. That concept is controversial.44 Other states, including those which are close allies of the US, have not generally employed the term ‘war against terrorism’. Indeed, subsequent US administrations have taken a different position and instead refer to an armed conflict of the US with al-Qaeda and its associated forces.45 Whether and to what extent that assertion is correct as a matter of international humanitarian law depends on the fulfilment of the same criteria as those for any armed conflict—whether international or non-international in character—referred to above. In other words, it is possible that violent acts that are being described as ‘terrorist’ by the victim state can bring international humanitarian law into operation. This can happen, for instance, when those acts are attributable to a state and give rise to an international armed conflict between that state and the state that is the target of the violent acts. It can also occur if the violent acts are not attributable to a state, when they reach the required degree of intensity and the group that engages in such acts is sufficiently organized so that the situation amounts to a non-international armed conflict. Thus, the fighting between the US and allied forces on the one side and Afghan forces on the other in 2001–2002 was an international armed conflict irrespective of whether Afghanistan was responsible for the al-Qaeda attacks in New York and Washington on 11 September 2001 which prompted the military operations in Afghanistan.46 Furthermore, the organized armed violence that ensued after the ousting of the Taliban government between the newly installed Afghan government and coalition forces, on the one hand, and various organized armed groups (remnants of the Taliban, al-Qaeda, etc.), on the other hand, amounted to a non-international armed conflict.
4. Although non-international armed conflicts are, in principle, subject to a different and more limited legal regime than that which applies in an international armed conflict, the evolution of conventional and customary international humanitarian law has brought about a tangible approximation between the law of international and non-international armed conflicts. A considerable body of treaty rules and customary international humanitarian law has evolved which applies in both types of armed conflicts.47 However, important differences remain. One pivotal example of these differences is the absence of combatant status in non-international armed conflicts, which entails the right to participate directly in hostilities48 and is the precondition for the status of prisoner of war.49 Another example is the law of occupation, which exclusively applies in international armed conflicts. Moreover, the applicability in non-international armed conflicts of a number of rules regulating methods and means of combat, that is tactics and weapons, is uncertain according to the ICRC Customary Law Study.50 Some other (p. 52) findings of the ICRC Customary Law Study on methods and means of warfare in non-international armed conflicts have also given rise to a critical response from the US government and academics.51
5. Despite these differences between the law regulating international armed conflicts and the law of non-international armed conflicts, it is possible that some or all of the law of international armed conflicts may become applicable, either through a mutual agreement between the parties to such an armed conflict, or by a unilateral declaration of one of the parties to that effect. Indeed, Common Article 3 encourages the parties to a non-international armed conflict to conclude special agreements to bring ‘all or part’ of the other provisions of the Geneva Conventions into force between them.
6. The final sentence of Section 209 adds an important policy rule, namely that regular armed forces should comply with all rules of international humanitarian law in the conduct of any armed conflict, irrespective of whether that conflict is characterized as non-international or international. Compliance with the full body of rules of international humanitarian law in non-international conflicts undoubtedly presents practical problems, but it serves not only humanitarian interests but also operational requirements. This policy has received support from a number of other sources (see below, Section 1216).52
7. An application of international humanitarian law beyond the legally required minimum needs to be distinguished from an application of it in situations that may involve a certain degree of (armed) violence without amounting to an armed conflict, such as internal disturbances or violent demonstrations. In such situations, a ‘choice’ to apply international humanitarian law is not available to the extent that the situation is governed by more stringent rules of international law. For instance, international humanitarian law allows certain actions, such as the rendering hors de combat of combatants, fighters, and civilians directly participating in hostilities, and the destruction or damage of military objectives, while the wounding and killing of persons and the destruction or damage of property is subject to more rigid rules during peacetime under human rights law. States and international organizations do not have the choice to replace the legal obligations under the more stringent legal framework applicable during peacetime for the more permissive rules of international humanitarian law. In short, parties to an armed conflict have the possibility to go beyond the minimum legally required under international humanitarian law, but those conducting military operations are not allowed to apply the permissive aspects of international humanitarian law in the absence of an armed conflict.
2. States are bound by those treaties of international humanitarian law to which they have consented, as well as the rules of customary international humanitarian law to which they have not persistently objected. Likewise, states are equally bound by those principles of international humanitarian law that amount to general principles of law in the sense of Article 38(1)(c) of the ICJ Statute. Furthermore, applicable binding resolutions of intergovernmental organizations may be the source for obligations of states under international humanitarian law, regardless of whether or not the rule in question applies to the respective state by virtue of its being embodied in a treaty binding upon that state, in the corpus of customary international humanitarian law or in the body of general principles of law in the sense of Article 38(1)(c).53
3. While international humanitarian law treaties do not provide for the possibility of international organizations to become parties, such organizations are bound by customary international humanitarian law by virtue of their international legal personality,54 when they are a party to an armed conflict.55 The binding force of international humanitarian law on UN forces under that condition is also confirmed by a number of other instruments.56 The determination whether or not, and for what time, international organizations are to be considered ‘a party to an armed conflict’ may involve complex issues of fact and law. As a general rule, this will be the case once, and for such time as, military personnel References(p. 54) of an international organization take direct part in hostilities. Such direct participation needs to be distinguished, however, from the situation in which military personnel of an international organization exercise their right to individual self-defence. It has also been suggested that the threshold of direct participation is equally not reached by the fact alone that such personnel use force in self-defence in the discharge of their mandate, provided that it is limited to such use.57 Similarly complex issues of fact and law evolve around the question whether and to what extent an international organization is to be considered subject to the law of belligerent occupation.58 Although international humanitarian law thus applies to international organizations in the aforementioned situations, two qualifications must be made. The first is that the application of the law of neutrality may be affected in a conflict in which the UN is involved, whether directly through forces under its command or indirectly because it has authorized military action. All states are, today, members of the UN and, as such, are under a legal obligation to carry out Security Council decisions relating to the maintenance of international peace and security.59 In addition, Article 2, para. 5 of the UN Charter provides that: ‘All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action.’ This obligation will prevail over the laws of neutrality by virtue of Article 103 of the UN Charter. A member state may not, therefore, rely upon the law of neutrality in order to evade the obligation to carry out binding Security Council resolutions. In addition, any state, whether or not a member of the UN, may assist a UN force or a force acting under the authorization of the Security Council even if such assistance would normally be a violation of the law of neutrality.60 The second qualification is that the application of international humanitarian law may be affected by binding decisions of the Security Council. This is particularly likely to be the case with respect to the law of belligerent occupation (see below, Chapter 5). That law places a high priority on the maintenance of the status quo in occupied territory pending a definitive settlement but the Council may well adopt decisions requiring structural change within the occupied territory (as it did in Iraq in 2003–2004).61 See further Chapter 13.
4. It is generally accepted that international humanitarian law, and in particular the law of non-international armed conflicts, binds organized armed groups. This is not only evident from the wording of Common Article 3, which is addressed to ‘each Party to the conflict’, and some other instruments applicable in non-international armed conflicts,62References(p. 55) but also confirmed by various resolutions and decisions of international bodies63 as well as the ICRC. Beyond this general acceptance, however, the conceptual basis for the binding force of international humanitarian law on organized armed groups is far from settled.64 For further discussion, see Chapter 12, Section 1201, para. 5.
1. In international armed conflicts, international humanitarian law formally recognizes and defines distinct categories of persons who do not or no longer directly participate in hostilities as ‘protected persons’. These are the wounded, sick and shipwrecked,67 prisoners of war,68 and civilians.69 While no formal categories of ‘protected persons’ exist in non-international armed conflict, the applicable international humanitarian law nevertheless grants material protection to those who do not or no longer actively participate in hostilities.
2. Among the aforementioned persons that enjoy general protection, international humanitarian law grants special protection to certain groups of persons, namely women,70 children,71 refugees and displaced persons,72 missing persons,73 medical and religious References(p. 56) personnel,74 humanitarian relief personnel,75 journalists,76 and personnel involved in a peacekeeping mission who are entitled to the protection given to civilians under international humanitarian law.77
1. Combatants in international armed conflicts, fighters in non-international armed conflicts, and civilians directly participating in hostilities are legitimate targets, that is they may be subjected to direct attack. They nevertheless enjoy a certain degree of protection through some rules on methods and means of warfare, first and foremost the prohibition of certain methods and weapons deemed to inflict superfluous injury and/or unnecessary suffering, and of those that actually do.
1. In international armed conflicts, military operations may not be carried out beyond what is at times referred to as ‘the area of war’.79 That area includes all the territory of the parties to the conflict,80 and the high seas, and exclusive economic zones (EEZs), (p. 57) including the EEZs of neutral states81 (although military operations in the EEZ of a neutral state must show due regard for the rights and interests of that state).82 International humanitarian law applicable in international armed conflicts as a whole thus has an extensive geographical scope. However, the geographical scope of individual rules may very well be more limited. Thus, the nature of the rules pertaining to the protection of prisoners of war and civilians have been mentioned as examples of rules that apply to the entire territory of the parties to the conflict, not just to the vicinity of actual hostilities, whereas other provisions have been held to be so clearly bound up with the hostilities that their geographical scope is limited to the territory in which hostilities occur.83
2. The territory (including internal and territorial waters) of neutral states and the airspace above them may not be made part of the area of war, unless the neutral state has allowed one of the belligerents to conduct military operations on its territory, in which case the rival belligerent has a right to take measures in that territory to terminate those operations.84
215 The dividing line between the airspace of the national territory of a state and outer space shall be drawn where, due to existing physical conditions, the density of the air is small enough to permit the employment of satellites. According to the present state of the art, the minimum flight altitude of satellites ranges between 80 and 110 km above ground level.
216 Subject to the agreement of the parties to the armed conflict, it is prohibited to extend military operations to demilitarized zones (Article 60 AP I), in particular hospital and safety zones (Article 23 GC I; Article 14 GC IV) and neutralized zones (Article 15 GC IV). Non-defended localities (Article 25 HagueReg; Article 59 AP I) may not be attacked (see Section 461 below).
1. Zones within the territory of the parties to a conflict may be excluded from the area in which military operations may be conducted by agreement between the parties. Thus Article 23 GC I and Article 14 GC IV provide for the establishment of hospital zones for the treatment of the wounded and sick. Article 15 GC IV provides for the establishment of safety zones intended to shelter the wounded, sick, and civilians ‘who take no part in hostilities’. Such zones are to be established by agreement between the parties and a Draft Agreement is attached to the Geneva Conventions as a precedent. The parties can also, if they so wish, establish zones on the high seas in which no hostile operations References(p. 58) are to take place. The provision in Article 60 AP I for the creation, again by agreement between the parties, of demilitarized zones builds upon the concept of the safety zones in the Fourth Convention. It should be noted that the establishment of all these zones requires agreement between the parties; a unilateral announcement by one party to the conflict is not sufficient. See further, Sections 461–3, 624–7.
217 Military operations shall not be carried out in the national territories of neutral or other states not parties to the conflict and in neutralized areas in which, according to contractual agreements, no military operations shall take place, even if the state to whose area of jurisdiction they belong is a party to the conflict. There are, for instance, binding agreements not to execute any military operations in Spitsbergen, in the area of the Åland Islands, in the Suez Canal, the Panama Canal, and in the Antarctic regions.
219 The law of belligerent occupation applies in territory that has actually come under the authority of hostile armed forces (see further Section 527).
220 In non-international armed conflicts the applicability of international humanitarian law extends to the entire territory of the state concerned (see below, Section 1201).
1. The territorial applicability of the law of non-international armed conflict extends to the entire territory of the state concerned.98 The geographical scope of international humanitarian law applicable in this type of armed conflict is thus not limited to areas of actual combat or their vicinity. While some rules, for instance those governing the conduct of hostilities, are practically relevant first and foremost in those areas where such hostilities actually occur, other rules apply throughout the territory irrespective of whether or not combat takes place.99
2. Complex questions relating to the geographical scope of international humanitarian law are raised by non-international armed conflicts that are not limited to the territory of one single state; non-international armed conflicts that are not internal in nature, in other words. See Section 1201.
References(p. 60) IV. Temporal Scope
1. Subject to the limited exceptions of those rules that apply also in peacetime,100 international humanitarian law begins to apply as soon as an armed conflict has come into existence. As soon as the factual requirements for that existence are met, the situation begins to be governed by international humanitarian law.
2. To the extent that one subscribes to the first-shot theory,101 that means that the law of international armed conflict begins to apply with the resort to armed force between states.
3. In a similar vein, the law of belligerent occupation begins to apply as soon as the factual conditions for the existence of a belligerent occupation are fulfilled. The precise determination when that is the case raises a number of complicated and contested questions. Thus, there is no unanimous agreement on the questions at what point in time the invasion by one state of the territory of another state turns into a situation of belligerent occupation; whether an intermediate period between the invasion phase and a situation of belligerent occupation may exist; whether occupation implies some degree of stability in the area subject to the foreign forces’ intervention; and to what extent the law of belligerent occupation can be applied gradually.102
222 In international armed conflicts, international humanitarian law ceases to apply on the general close of military operations. The law of belligerent occupation ceases to apply at the termination of the occupation. In non-international armed conflict, international humanitarian law ceases to apply at the end of the armed conflict. However, persons deprived of their liberty or whose liberty has been restricted for reasons related to an armed conflict continue to benefit from the protections of international humanitarian law until the end of such deprivation or restriction of liberty (Article 6, paras. 2 and 3, GC IV; Article 3, lit. b, AP I; Art. 5 GC I; Art. 5, para. 1, GC III; Art. 6, para. 4, GC IV; Article 3, lit. b, AP I; Article 2, para. 2, AP II).
(p. 61) 1. As much as the beginning of the applicability of international humanitarian law, the end of that applicability is essentially a matter of fact. As far as international armed conflicts are concerned, the law ceases to apply ‘on the general close of military operations’.103 This is different in situations of belligerent occupation. Article 6(3) GC IV stipulates that in such a case, the Convention ceases to apply ‘one year after the general close of military operations’ except for certain rules which apply for the duration of the occupation and ‘to the extent that [an Occupying Power] exercises the functions of government in [occupied] territory’. AP I differs to some extent from GC IV in as much as it extends the applicability of the entire law of belligerent occupation until the ‘termination of the occupation’.104 Regardless of whether or not there is a general close of military operations or a termination of the occupation, persons for whom the final release, repatriation, or re-establishment is pending continue to benefit from the relevant rules of international humanitarian law.105 In the case of a non-international armed conflict, international humanitarian law ceases to apply with the ‘end of the armed conflict’, with a similar exception as regards those deprived of their liberty or whose liberty is restricted for reasons related to that conflict. They continue to benefit from a limited number of protections, regardless of whether they are so deprived or restricted during or after the conflict.106
223 In international armed conflicts, hostilities may be terminated temporarily or permanently. Even a definite cessation of hostilities does not alter the fact that there is a state of war. A state of war will be ended only by a conclusion of peace unless it has already been expressly terminated. The following sections on activities relating to the termination of hostilities and on the conclusion of peace are based on treaty law and custom applicable in international armed conflicts. However, they partly affect activities to terminate hostilities and conclude peace agreements in non-international armed conflicts (see also below, Section 1221).
1. The termination of the applicability of international humanitarian law discussed in the previous section needs to be distinguished from the termination of hostilities. The latter term is not identical with the notion of ‘armed conflict’ as a factual determinant of the beginning and end of the temporal scope of applicability of international humanitarian law. The term ‘hostilities’ in turn, refers to the resort by the parties to the conflict to (p. 62) means and methods of injuring the enemy.107 In other words, ‘hostilities’ are a narrower concept than, and form only one part of, an ‘armed conflict’. Hostilities can be terminated temporarily or permanently by means of an armistice or ceasefire (see below).
2. Where a state of war has come into being through a formal declaration of war, the fact that hostilities have been terminated is not in itself sufficient to terminate the state of war. Historically, it has generally been accepted that as a corollary to the formal requirement of a declaration of war to bring about the state of war, it is also only through the formal instrument of a peace treaty which terminates the state of war.108 Today, some other clear indication on the part of the belligerents that they intend to terminate the state of war can fulfil the same function as a peace treaty (on the role of armistices in that respect, see below, Section 245). Although active hostilities during World War II ceased in Europe in May 1945, it was not until 31 December 1946 that the US formally announced that hostilities had terminated.109 Even then, the state of war was regarded as continuing, pending the adoption of a peace treaty between Germany and her former adversaries. In the end, no peace treaty was concluded.110 The state of war was, however, formally declared terminated by France (9 July 1951), the UK (9 July 1951), the US (24 October 1951), and the USSR (25 January 1955). Similar declarations were made by Germany’s other former adversaries.111 Until those declarations were made, national courts continued to hold that the state of war obtained for most purposes.112
1. Parlementaires and Protecting Powers
225 Parlementaires are persons authorized by one party to the conflict to enter into negotiations with the adversary. Parlementaires and persons accompanying (p. 63) them, for example drivers and interpreters, have a right to inviolability (Article 32 HagueReg). They make themselves known by a white flag.
1. The parlementaire is usually, but not necessarily, an officer. He may be of any nationality. Defectors or persons taken prisoner by the adversary cannot have the status neither of parlementaires nor of persons accompanying parlementaires, and hence have no right of inviolability. They can be detained if the tactical situation so requires.
2. A parlementaire has a duty to make himself and the purpose of his mission known to the adversary; his own protection may depend upon this. For that reason, the law has traditionally required that a parlementaire display a white flag (Article 32 HagueReg). A white flag is, however, no more than a signal that an armed force wishes to open negotiations. By hoisting a white flag a force is asking its adversary whether it is willing to receive a communication. It does not necessarily indicate an intention to surrender, although it has come to indicate such an intention when raised by an individual soldier or a small group of soldiers during an exchange of fire. Although it is unlawful for a force displaying a white flag to carry on firing, great caution is necessary, for the flag may have been hoisted by some members of a unit without the knowledge or consent of the commander.115 During the Battle for Goose Green in the Falklands conflict, some Argentine soldiers displayed a white flag without authorization from their commander and unknown to the rest of the Argentine forces engaged in the battle. A British party who went into the open to investigate were fired on and killed by other Argentine soldiers who were apparently unaware of the white flag raised by their colleagues.
226 When entering the territory of the adversary, parlementaires and the persons accompanying them shall not be taken prisoner or detained. The principle of inviolability shall apply until they have returned safely to friendly territory. The adverse party is not required to cease firing in the entire sector in which a parlementaire arrives.
1. The parlementaire and those accompanying him or her are accorded inviolability. This means that they may not be fired upon or otherwise attacked, nor may they be detained. Except by prior agreement, however, the approach of a parlementaire does not require opposing forces to cease firing throughout a whole sector of the battlefield. Nevertheless, the entitlement of parlementaires and those accompanying them to be accorded inviolability is not absolute. First, they may be temporarily detained if they have (accidentally) acquired information the disclosure of which to the adversary would jeopardize the success of a current or impending operation of the friendly armed forces.117 In this case, the parlementaire (p. 64) may be detained until the operation has been completed. In the meantime, he shall be treated with the respect appropriate to his position and at least like a prisoner of war. For a second exception, see the following section.
2. Distinct from the question of inviolability and loss of it is the question whether the commander to whom a parlementaire is sent is in all cases obliged to receive him or her. According to Article 33, para. 1 of the Hague Regulations of 1907, that question is to be answered in the negative. The commander may refuse to receive a parlementaire, for instance because reception would bear the risk of revealing operationally or tactically sensitive information. However, it is not considered lawful for a commander to announce in advance that parlementaires will not be received.118
228 Misusing the flag of truce constitutes perfidy and is thus a violation of international law (Article 23 lit. f, HagueReg; Article 37, para. 1 lit. a, Article 38, para. 1, AP I). The flag of truce is misused, for instance, if soldiers approach an enemy position under the protection of the flag of truce in order to attack.
References(p. 65) 229 Apart from dispatching parlementaires, the parties to a conflict may also communicate with each other through the intermediary of Protecting Powers. Protecting Powers are neutral or other states not parties to the conflict which safeguard the rights and interests of a party to the conflict and those of its nationals vis-à-vis an adverse party to the conflict (Article 2 lit. c, AP I). Particularly, the International Committee of the Red Cross may act as a ‘substitute’ (Article 5, para. 4, AP I) if the parties to the conflict cannot agree upon the designation of a Protecting Power.
For discussion of the now little-used institution of the Protecting Power, see Sections 1420–1421. The ICRC is now used more frequently as an intermediary.
2. Ceasefire and Armistice
230 An armistice agreement is characterized by the intention to provide an opportunity for making preparations for the termination of an armed conflict. Its aim is to terminate hostilities permanently. That is what distinguishes an armistice from a ceasefire. An armistice may be local (Article 37 HagueReg). As a matter of principle, however, an armistice agreement shall be designed to suspend military operations between the parties to the conflict and to pave the way for peace negotiations.
1. The distinction between a general armistice and a ceasefire has traditionally been that the armistice was considered a step on the road to a permanent end to hostilities and the conclusion of a treaty of peace. Thus the armistice of Rethondes in 1918 was a prerequisite for the commencement of negotiations which led in 1919 to the Treaty of Versailles and the termination of World War I. Since World War II, however, there have been a number of cases in which hostilities were brought to a close by the conclusion of an armistice agreement and no peace treaty was subsequently agreed. The hostilities in Korea were brought to an end by the conclusion of the Panmunjom Armistice Agreement in 1953, and the first Arab–Israeli hostilities ceased with the conclusion of the 1949 armistice agreements between Israel, Egypt, Jordan, Lebanon, and Syria.
2. Historically, it has always been considered that the conclusion of a ceasefire or an armistice did not terminate the state of war.121 It has been questioned whether this principle is still part of the law, especially where, as in the case of the 1949 armistice agreements between Israel and four Arab states, an armistice is concluded under UN auspices.122 The correct view is probably that stated by Judge Baxter, namely that such an instrument can terminate the state of war, if the parties intend that it should have that effect,123 for just as the creation of a state of war is brought about by a clear expression of the intentions of a country, that state of war can also be terminated by an indication of the intention to do so.
(p. 66) 231 A ceasefire is defined as a temporary interruption of military operations which is limited to a specific area and will normally be agreed upon between the local commanders. It shall generally serve humanitarian purposes, in particular searching for and collecting the wounded and the shipwrecked, rendering first aid to these persons, and removing civilians (Article 15 GC I; Article 18 GC II; Article 17 GC IV). The regulations governing armistices (Articles 36–41 HagueReg) shall be applied mutatis mutandis.
232 If the parties to the conflict have not defined the duration of an armistice, it shall, as a matter of principle, be considered a valid assumption that the armistice is designed to be the transition to a definite cessation of hostilities. The ban on the use of force embodied in the UN Charter shall also be observed during this period of transition. In contrast to the provisions of the Hague Regulations Concerning the Laws and Customs of War on Land (Article 36 HagueReg), the parties to a conflict may not, at any time, resume operations after the conclusion of an armistice except in the exercise of the right to self-defence in accordance with the UN Charter.
1. The changes in the law regarding resort to force brought about by the adoption of the UN Charter have had a particular effect on the right of the parties to resume hostilities after the conclusion of an armistice. Whereas the law once admitted there was a general right to resume hostilities (Article 36 HagueReg), today it would be a violation of Article 2(4) for a state to resume hostilities unless the behaviour of the other party to the armistice amounted to an armed attack or an imminent threat of an armed attack. Similarly, although under the traditional law the conclusion of an armistice did not prejudice the right of a party to exercise belligerent rights against shipping, such action would now be lawful only if it constituted a necessary and proportionate measure of self-defence.
2. That the law relating to the resumption of hostilities and the exercise of belligerent rights has changed in this way since the Hague Regulations were adopted was made clear by the Security Council in 1951, when it ruled that Egypt’s continued exercise of belligerent rights against shipping was incompatible with the Egypt–Israel Armistice Agreement 1949. The Council ruled that: ‘…since the armistice regime, which has been in existence for nearly two and a half years, is of a permanent character, neither party can reasonably assert that it is actively a belligerent or requires to exercise the right of visit, search and seizure for any legitimate purpose of self-defence… ’.126
233 Any serious violation of a ceasefire or an armistice may give the other party the right of denouncing it and, provided that the conditions for an exercise of the right to self-defence in accordance with the UN Charter are fulfilled, to recommence hostilities. A denunciation of the armistice will be necessary only if the military situation so permits (Article 40 HagueReg; Articles 2, no. 4, and 51 UN Charter).
235 The terms of the armistice treaty shall be strictly observed by the parties to a conflict. It is not permissible to carry out any military operations giving an advantage over the adversary. To what extent this shall also apply to other actions taken during the armistice depends on the terms of the agreements made.
236 The area of application of a limited armistice shall be defined as precisely as possible. If, for instance, wounded persons are to be recovered it must be clear if and up to what line bombardments further to the rear remain permissible. Sometimes it will also be necessary to coordinate the utilization of the airspace and the passage of ships.
International humanitarian law exists primarily to protect individuals rather than to establish rights for states.129 The states party to a conflict may not, therefore, waive by agreement between them any of the rights conferred upon individuals by international humanitarian law. However, they may of course agree to accord greater protection than is required by international humanitarian law.
241 Every commander may declare or accept a capitulation only for his particular area of command. The capitulation and its acceptance are binding upon the states involved in the conflict. Every state may, however, call a capitulating commander to account if he has violated his duties, for example acted against orders.
While the capitulation of the forces in a particular part of the area of operations will not affect the existence of the state of armed conflict elsewhere, when the surrender effectively applies to all the forces of one party in the area of operations and when there is every indication that the state on which those forces depend will not resume operations elsewhere, then the surrender may mean that active hostilities between the parties have ceased, with consequences for such matters as the duty to repatriate prisoners of war.130 The surrender of Argentine forces in the Falkland Islands in June 1982 led to the end of active hostilities and the repatriation of prisoners of war within a very short period once the British forces had taken the surrender of outlying Argentine garrisons not covered by the principal instrument of surrender and once it became clear that Argentina had no intention of carrying on hostilities from the mainland.131
4. Conclusion of Peace
1. Parties to an armed conflict frequently use peace treaties to conclude peace. One can broadly distinguish between two types of peace treaties. First, peace treaties strictu senso are agreements concluded between belligerent states in written form and governed by international law that bring to an end the formal or material state of war and to restore amicable relations between them. These peace treaties may only be concluded by heads of states or explicitly authorized representatives of the government of a state. Secondly, agreements that are concluded between a non-state party to an armed conflict, on the one hand, and either one or more states or one or more non-state parties, on the other hand, with a view to bring to an end a non-international armed conflict are commonly referred to as peace agreements.132
2. Peace treaties regularly address the following broad categories of issues:
— the consequences of the conflict, including matters such as prisoners of war and other conflict-related detainees and displaced persons;
— measures that are taken to avoid a relapse into armed conflict, such as the peaceful settlement of territorial disputes, disarmament, demobilization, rehabilitation and reintegration of members of the armed forces of organized armed groups, restructuring and training of governmental armed forces, democratization and power-sharing, and human rights issues, and the granting of amnesty;
— the procedural and institutional dimensions of the implementation of, and monitoring over the compliance with, the terms of the peace treaty, such as the setting up of, and the procedures applicable to, Joint Commissions, bodies entrusted with investigating the causes of the conflict and boundary commissions in the case of territorial disputes, and the role of third parties, such as intergovernmental and regional organizations and third states in implementation and monitoring, and, in case of peace agreements, the establishment of transitional bodies, including transitional governments and transitional justice mechanisms, such as Truth and Reconciliation Commissions.133
Armed conflicts are oftentimes terminated by less formalized modes than by peace treaties. These modes include implied mutual consent that can be inferred from the mere termination of hostilities; the complete defeat of one of the belligerents (debellatio) (p. 70) and unilateral declarations.135 It has also been suggested that certain instruments which are traditionally regarded to merely suspend hostilities but which do not terminate the state of war or the armed conflict, such as armistices, have nowadays at times effectively assumed roles comparable to those of peace treaties.136 It must be stressed, however, that these modes to terminate an armed conflict—whether formalized or not—do not automatically bring to an end the applicability of international humanitarian law. That question is dependent on the purely factual equation of the existence of an international armed conflict, belligerent occupation, or a non-international armed conflict. In other words, a unilateral declaration to the effect that one of the parties to an armed conflict considers the armed conflict to have ended has no bearing on the question whether the situation after such a declaration is governed by international humanitarian law. If the situation continues to be one of resort to armed force between states, of belligerent occupation of protracted armed violence between governmental forces and organized armed groups or between such groups, international humanitarian law continues to apply (see above Section 222).
The most obvious manifestation of this principle is that the rules of general international law relating to such matters as treaty interpretation and application137 and state responsibility138 are as applicable in times of armed conflict as they are in times of peace. International humanitarian law is not a self-contained body of law but part and parcel of international law as a whole. The 2005 decision of the ICJ in DRC v Uganda139 is a good example of international humanitarian law being applied within the framework of international law as a whole. Moreover, the outbreak of armed conflict no longer suspends the operation of that part of international law known as the law of peace, so that it remains applicable between the belligerents and neutrals and, subject to the effect of international humanitarian law, between the belligerents themselves.
1. Peacetime Rules
As a general rule, the law of peace continues to apply between each belligerent state and the non-belligerent or neutral countries, subject only to the effects of the law of neutrality. The law of neutrality qualifies the law of peace by conferring certain additional rights and obligations upon both belligerents and neutrals. Nevertheless, in many modern conflicts, there has been a reluctance to apply the law of neutrality and belligerents have frequently dealt with states not party to the conflict solely on the basis of the law of peace. As explained above, the law of peace will also continue to apply between the belligerents themselves. It is, however, subject to two qualifications. First, some rules of the law of peace contain within themselves limitations which become applicable in time of armed conflict or permit parties to derogate in time of armed conflict. Second, the law of armed conflict operates as a lex specialis which—in certain circumstances at least—will override conflicting obligations under the law of peace. This issue is discussed further below in connection with the operation of human rights law in time of armed conflict.
2. Human Rights
— the International Covenant on Civil and Political Rights of 19 December 1966 with its Optional Protocols;
— the International Covenant on Economic, Social and Cultural Rights of 19 December 1966;
— the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 with its Optional Protocol;
— the Convention on the Rights of the Child of 20 November 1989 with its Optional Protocols;
— the International Convention for the Protection of all Persons from Enforced Disappearance of 23 September 2005.
References(p. 72) 251 The application of international humanitarian law does not exclude that international human rights law may also be applicable to a particular situation. The relationship between international humanitarian law and the law of human rights has been shaped as part of a development, which started after the Second World War and is expressed in the adoption of major human rights principles in Article 75 AP I.
1. International humanitarian law obviously has much in common with the law of human rights, since both bodies of rules are concerned with the protection of the individual.142 Nevertheless, there are important differences between them. Human rights law is designed to operate primarily in normal peacetime conditions, and within the framework of the legal relationship between a state and its citizens. Human rights law applies primarily—albeit not exclusively (see below, Section 254)—within the territory of the state that is subject to the human rights obligation in question. Human rights law binds primarily states, whereas its binding nature vis-à-vis non-state actors, especially organized armed groups, is a matter of dispute (see below, Section 255). International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict and the relationship between armed actors and victims of armed conflicts or between such armed actors themselves, a relationship otherwise based upon power rather than law. The extraterritorial applicability of international humanitarian law is a given in international armed conflicts and situations of belligerent occupation. The binding nature of international humanitarian law vis-à-vis non-state actors, such as organized armed groups and individuals, is generally accepted. These differences between human rights law and international humanitarian law have led some to argue that human rights law is only intended to be applicable in time of peace. This view is not generally accepted and the better view is that human rights continues to apply during armed conflict.143
252 When applicable simultaneously, this relationship between human rights law and international humanitarian law is characterized by mutual complementarity144 and the lex specialis principle.
References(p. 73) 253 The lex specialis principle, however, should not be misunderstood as applying to the general relationship between the two branches of international law as such, but rather relating to specific rules in specific circumstances.
1. In cases of simultaneous application, the relationship between international humanitarian law and human rights law is often referred to as ‘complementary’.145 The two fields are thus regarded to be mutually reinforcing in as much as they complete and perfect each other. That mutual reinforcement can manifest itself in a number of ways, which depend on whether (a) a given question is regulated exclusively by humanitarian law; (b) a given question is regulated exclusively by human rights law; and (c) a given question is regulated by both humanitarian law and human rights law.146
In the first situation, the mutual reinforcement takes the form of international humanitarian law filling the gaps left by human rights law. The use of the red cross, red crescent, and red crystal emblem may serve as an illustration of such an area unregulated by human rights law. The pertinent rules of international humanitarian law then apply exclusively.147 In the second situation, the reverse is true: for instance, since only human rights law regulates rights such as freedom of expression and freedom of assembly, international humanitarian law is irrelevant to the issue. Answers to questions pertaining to such rights thus fall into the exclusive province of human rights law.148 In the third situation, where a matter is regulated by international humanitarian law and human rights law, however, the applicable law will have to be determined by recourse to the general rule that priority should be given to the norm that is more specific (lex specialis derogat legi generali).
2. The maxim of lex specialis derogat legi generali is a technique of interpreting legal rules and a means to resolve conflicts between legal norms. The maxim can be conceived in two ways. Either the specific rule is to be read and understood within the confines or against the background of the general rule, as an elaboration, updating or specification of the latter.149 Or the specific rule is applied instead of, and as an exception to, the general rule.150 Whether a rule is seen as an ‘application’, ‘modification’, or ‘exception’ to another rule, depends on how those rules are viewed in the environment in which they are applied, including their object and purpose.151 The maxim of lex specialis derogat legi References(p. 74) generali functions in the aforementioned ways also in the relationship between international humanitarian law and human rights law.
3. As a technique of interpretation, international humanitarian law informs the interpretation of human rights law if and when the former is more specific. This is the approach adopted by the ICJ in its Nuclear Weapons Advisory Opinion when discussing the right not arbitrarily to be deprived of one’s life in times of armed conflict. In the words of the Court, ‘[t]he test of what is an arbitrary deprivation of life [… ] falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’.152 However, when applying the maxim of lex specialis derogat legi generali as a technique of interpretation, the more specific norm may also derive from human rights law, which then informs a more general rule of international humanitarian law. When Common Article 3 prohibits, for instance, ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’, the notions of ‘regularly constituted court’ and ‘judicial guarantees’ will have to be determined by reference to human rights law, which is more specific on these matters.153
254 Whether human rights obligations of a sending state apply extraterritorially depends upon the terms of the human rights treaty in question. In many cases, a decisive factor will be whether the individuals concerned come within the jurisdiction of the state with whose armed forces they come into contact.
1. In the words of the ICCPR, states parties have to respect and ensure civil and political rights ‘to all individuals within [their] territory and subject to [their] jurisdiction’.161 This wording differs in some respects from regional instruments,162 while an indication as to the territorial reach is absent from the ICESCR. These divergences have led to deviating jurisprudence and a considerable debate about the extraterritorial applicability of human rights.
2. The Human Rights Committee has interpreted Article 2(1) of the ICCPR to mean that a state party ‘must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party… This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.’163 That interpretation, although contested by a limited number of states,164 finds further support in other findings of the Human Rights Committee,165 endorsed by the International Court of Justice’s jurisprudence,166 and in some judgments of domestic courts.167 Examples of situations in which persons have been found to find themselves ‘within the power or effective control’ of a state References(p. 76) party include extraterritorial detention by a state party to the ICCPR,168 and belligerent occupation.169
3. In its case law, the ECtHR has held on various occasions that the European Convention applies extraterritorially if and when a state party acts abroad so as to bring the person concerned into its ‘jurisdiction’ in the sense of Article 1 of the ECHR. This is the case, for instance, ‘when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.’170 As to the level of ‘effective control’ required to satisfy the threshold for the applicability ratione loci of the European Convention, the Court further specified that ‘[i]t is not necessary to determine whether [the state concerned] actually exercises detailed control over the policies and actions’ of the authorities in question. Rather, ‘effective overall control’ is sufficient.171 The Court has further clarified the extraterritorial reach of obligations under the European Convention by determining that aerial bombardment is, without more, insufficient to bring persons affected by such bombardments into the ‘jurisdiction’ of states parties to the Convention that carry out the bombardments.172 In contrast, a person that finds itself in the hands of state organs abroad, for instance by virtue of being detained, finds itself in the ‘jurisdiction’ of that state.173 The Court has once restricted the reach of the extraterritorial application of the Convention to contracting states, holding that it operated in ‘an essentially regional context and notably in the legal space (espace juridique) of the Contracting States’.174 The Court suggested that the ‘Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States’ and only applied extraterritorially ‘when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention’.175 However, that restriction seems to have been abandoned in subsequent case law of the ECtHR,176 although it has been followed by the UK House of Lords.177 In contrast to its earlier jurisprudence,178 the References(p. 77) ECtHR now also seems to accept the possibility that a contracting state’s extraterritorial obligations under the European Convention can be divided and tailored in as much as its obligation under Article 1 to secure to an individual the rights and freedoms enshrined in the Convention that are relevant to the situation of that individual.179
4. The Inter-American Court and Commission on Human Rights have also held the human rights instruments of the Inter-American system to be applicable outside the territory of the states parties. Thus, in the words of the Commission, the obligation to uphold the protected rights of any person subject to the jurisdiction of a state ‘may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state—usually through the acts of the latter’s agents abroad. In principle, the inquiry turns not on the presumed victim’s nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.’180 Cases of ‘authority and control’, according to the Commission’s findings, do not only comprise extraterritorial detention,181 but also military operations conducted by a state outside its territory,182 including—and in contrast to the findings of the ECtHR in Banković183—military air operations in international airspace.184
1. The primary addressees of international human rights law, whether emanating from treaty, custom, or general principles of law, are states. In addition, international organizations are bound by customary international human rights law by virtue of their international legal personality, to the extent that they exercise functions in a way that can be equated with the exercise of jurisdiction by a state (on the notion of ‘jurisdiction’, see the previous section). In addition, the binding force of international human rights law upon international organizations can at times be construed on the basis of, or further strengthened by, their constituent treaties, internal rules, and practice.186
References(p. 78) 2. The applicability of international human rights law to organized armed groups is hotly contested. While some evidence suggests that organized armed groups are gradually brought into the reach of international human rights law by virtue of a process of international customary law formation,187 the better view is that such evidence currently is insufficient to conclude that such a customary process has already reached the point of crystallizing into a firm rule.188
3. International Criminal Law
See below, Chapter 14.
1 As an exception to the rule that international humanitarian law applies in times of armed conflicts, some rules, such as those relating to dissemination, are applicable in peacetime as well. For these exceptions, see e.g. Arts. 23, 44, 47 GC I; Art. 127 GC III; Art. 144 GC IV; Arts. 6, para. 1, and 83, para. 1 AP I; Art. 7 AP III.
3 Chiefly comprising the 1907 Hague Regulations on Land Warfare, the four 1949 Geneva Conventions (except Common Article 3), the 1977 Additional Protocol I, and a significant number of treaties pertaining to more specific issues, as well as customary international law.
11 Ibid. 28, and supportive state practice at 16–7.
12 For the pertinent case of a US pilot shot down and captured by Syrian forces over Lebanon in the 1980s, when the US maintained that this incident amounted to an armed conflict and that the pilot was thus entitled to be treated as a prisoner of war under GC III, see (1988) 82 Proceedings of the American Society of International Law 602–3 and 609–11.
13 H. A. Wilson, International Law and the Use of Force by National Liberation Movements (Clarendon, 1988), 168. See also the declarations made by the UK on ratifying the Protocol, Roberts/Guelff (eds), Documents on the Laws of War, 3rd edn (OUP, 2000), 510–2.
16 Compare G. Abi-Saab, ‘Wars of National Liberation in the Geneva Conventions and Protocols’ (1979-IV) 165 RdC 353, 371–2 and Cassese, ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law’ (1984) 3 UCLA Pacific Basin Law Journal 55, 68–71, with Aldrich, ‘Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I’ (1986) 26 VaJInt 703; Draper, ‘Wars of National Liberation and War Criminality’ in Howard (ed.), Restraints on War (OUP, 1979); Greenwood, ‘Customary Law Status of the 1977 Geneva Protocols’ in Delissen/Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead. Essays in Honour of F. Kalshoven (Nijhoff, 1991), 93–114, at 111–12.
21 Cf. Art. 42 HagueReg (1907). As to the customary status of Art. 42, see ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 167, paras. 78 and 172, para. 89; ICJ DR Congo v Uganda, para. 172.
29 Egypt, however, recognized Israel in 1979 when the two states concluded a peace treaty, as did Jordan in 1994. See Section 243.
33 M. Sassòli, ‘Ius ad Bellum and Ius in Bello—The Separation between the Legality of the Use of Force and Humanitarian Rules to be Respected in Warfare: Crucial or Outdated?’ in Schmitt/Pejic, International Law and Armed Conflict: Exploring the Faultlines—Essays in Honour of Yoram Dinstein (Brill, 2007), 241–64, 254–7.
35 Rule 140 CIHL. See below, commentary para. 4(b) to Section 1201.
36 R. Tucker, The Law of War and Neutrality at Sea (US Government Printing Office, 1957), 199–200. See also D. Schindler, ‘State of War, Belligerency, Armed Conflict’ in Cassese (ed.), The New Humanitarian Law of Armed Conflict (Editoriate Scientifica, 1979), 3, 5; E. Castren, The Present Law of War and Neutrality (Helsinki: Suomalaisen Kirjallisuuden Seuran Kirjapainon Oy, 1954), 34–5; H. Lauterpacht (ed.), Oppenheim’s International Law, Vol. II, 7th edn (David McKay, 1952), 655.
37 Greenwood, ‘The Concept of War in Modern International Law’ (1987) 36 ICLQ 283, 297–301; statements by India quoted in S. P. Sharma, The Indo-Pakistan Maritime Conflict 1965 (Bombay: Academic Books, 1970), 87 and by Canada (1983) XXI CYIL 326.
38 See, e.g., US Naval Manual (2007) at para. 7(i); US Operational Law Handbook (2012), 41; UK Manual (2004), 19 at 1.42; Australian Manual (2006) at 11.1–11.3; France Manuel (2012), 66; Bothe, ‘Neutrality in Naval Warfare: What is Left of Traditional International Law?’ in Delissen/Tanja (eds), Humanitarian Law of Armed Conflict—Challenges Ahead: Essays in Honour of Frits Kalshoven (Nijhoff, 1991), 387–405.
45 See, e.g., H. H. Koh, Legal Adviser, US Department of State, Address to the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (25 March 2010), <http://www.state.gov/s/l/releases/remarks/139119.htm>.
46 See commentary to Section 101 on the quite different question of whether the events of 11 September 2001 constituted an armed attack for the purposes of the law of self-defence.
47 As for treaty law, see Sections 1207–11. For customary international humanitarian law, see CIHL, concluding that of the 161 Rules that were found, 159 apply in international armed conflicts and 148 apply in non-international armed conflicts.
50 See the findings of the Study on the prohibition of the improper use of the flags or military emblems, insignia, or uniforms of the adversary, applicable in international armed conflicts, but only ‘arguably’ so in non-international armed conflicts. Cf. CIHL Rules 62 and 63.
51 See, e.g., John B. Bellinger III and William J. Haynes II, ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’ (2007) 866 IRRC 443–71 at 460, 465; D. Turns, ‘Weapons in the ICRC Study on Customary International Humanitarian Law’ (2006) 11 JCSL 201–37. For a response to the US criticisms, see J. M. Henckaerts, ‘Customary International Humanitarian Law: a response to US comments’ (2007) 866 IRRC 473–88.
52 International Institute for Humanitarian Law, ‘Declaration on the Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-International Armed Conflicts’ (1990) IRRC 404–8; see also the discussion in the US Naval Manual (2007) 5–3 and Department of Defense (DoD) Directive 5100.77 of 10 July 1979, restated in DoD Directive 2311.01E of 9 May 2006, DoD Law of War Program, Section 4.1.
53 Although the Security Council has not acted, through the exercise of its Chapter VII powers, as legislator in the field of international humanitarian law thus far, that possibility cannot be excluded. See G. Nolte, ‘The Different Functions of the Security Council with Respect to Humanitarian Law’ in Lowe/Roberts/Welsh/Zaum (eds), The United Nations Security Council and War—The Evolution of Thought and Practice since 1945 (OUP, 2008), 532.
54 For the UN, see ICJ Reparations, Advisory Opinion (1949) 179. Whether all international organizations possess international legal personality is largely a definitional question. However, in the following, use will be made of the definition of an international organization as expounded in the Draft Articles on Responsibility of International Organizations. Draft Article 2 defines an international organization as ‘an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality’. Cf. ILC Report on the work of its 59th Session (7 May to 5 June and 9 July to 10 August 2007), GAOR 62nd Session, Supplement No. 10 (A/62/10), p. 185. For the commentary to this article, see Official Records of the General Assembly, 58th Session, Supplement No. 10 (A/58/10), pp. 38–45.
55 See among many others, C. Greenwood, ‘International Humanitarian Law and United Nations Military Operations’ (1998) 1 YIHL 3–34 at 16; D. Shraga, ‘The United Nations as an Actor Bound by International Humanitarian Law’ (1998) 5 International Peacekeeping 64–81 at 65. For parallel arguments vis-à-vis the EU, see M. Zwanenburg, ‘Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations’ in: S. Blockmans (ed.), The European Union and Crisis Management (Asser Press, 2008), 395–415 at 400–1. See also ECJ, Racke (Case C-162/96) , para. 45; Poulsen and Diva Navigation Case C-286/90  ECR I-6019, para. 9, confirming that the EC is required to comply with the rules of (customary) international law in the exercise of its powers.
56 See, e.g., Articles 2(2) and 20 of the 1994 Convention on the Safety of United Nations and Associated Personnel [‘Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.’ ‘Nothing in this Convention shall affect: (a) The applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards’]; UN Secretary General, Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999. ST/SGB/1999/13; UN DPKO Department of Field Support, ‘United Nations Peacekeeping Operations—Principles and Guidelines’ [Capstone Doctrine] 15 January 2008.
58 For a summary of the debate surrounding the issue vis-à-vis UN operations, see ICRC, Occupation and other Forms of Administration of Foreign Territory, Report of Expert Meeting, Geneva (2012) <http://www.icrc.org/eng/assets/files/publications/icrc-002–4094.pdf>, 33–4.
60 See the 1975 Wiesbaden resolution of the Institut de droit international, Annuaire de l’Institut, 56 Vol. II (1975), 541, Schindler/Toman (eds), The Laws of Armed Conflict, 4th edn (Nijhoff, 2004), 907 and Dinstein, above (n. 18), 154–5.
62 Cf. e.g. Articles 7 and 8 of the 1999 Second Hague Protocol, both equally addressed to ‘each Party’ or ‘Parties to the conflict’; Articles 8(2)(e)(vii) [‘conscripting or enlisting children … into armed forces or groups… ’] and (2)(e)(xi) [‘subjecting persons who are in the power of another party to the conflict to physical mutilation… ’] ICC Statute.
63 See for recent examples. e.g. SC Res. 1868 (2009), Preamble (Afghanistan); 1863 (2009) para. 15 (Somalia); 1856 (2008) para. 23 (DR Congo); all calling upon, or demanding that all parties to the respective armed conflicts comply with international humanitarian law; UN Commission on Human Rights… See also Special Court for Sierra Leone, Prosecutor v Kallon and Kamara, Appeals Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004) para. 45.
65 For an early example, see e.g. the Henfield’s case, 11 F. Cas. 1099 (C. C. D. Pa. 1793)(No. 6,360), reproduced in J. Paust, M. C. Bassiouni, M. Scharf et. al. (eds), International Criminal Law, Cases and Materials, 2nd edn (Carolina Academic Press, Durham, 2000), 232–8.
66 For the criminal responsibility of civilians for war crimes, see among many others, Trial of Alfried Felix Alwyn Krupp and Eleven Others, US Military Tribunal, Nuremberg 17 November 1947–30 June 1948. Law Reports of Trials of War Criminals, Vol. X, p. 150. For a useful summary of other case-law, including criminal trials of civilians for war crimes, see Provost, International Human Rights Law and Humanitarian Law (CUP, 2002), 75–102. For a recent restatement, see Prosecutor v Akayesu, ICTR-96–4-T, Judgment, Appeals Chamber, 1 June 2001, paras. 443–4.
70 GC I, Art. 12(4); GC II, Art. 12(4); GC IV, Art. 27; AP I, Art. 76; GC III, Arts. 25, 97; GC IV, Arts. 76, 85, 124; AP I, Art. 75(5); AP II, Art. 5(2)(a); GC III, Art. 14; GC IV, Art. 97; GC III, Art. 29; GC IV, Art. 85(4); GC III, Art. 88; AP I, Art. 76(2), (3); AP II, Art. 6.
80 Unless somehow excluded, e.g. by neutralization; see Sections 216–217.
81 See Chapter 10.
84 See Chapter 11.
87 Afsah, above (n. 85).
95 A number of other cases in which territory is said to have been neutralized are discussed in H. Lauterpacht, Oppenheim’s International Law, Vol. II, 244–7 and Afsah, above (n. 85).
97 This question is discussed further by Greenwood, ‘Self-Defence and the Conduct of International Armed Conflict’ in Dinstein/Tabory (eds), International Law at a Time of Perplexity (Nijhoff, 1989), 273, 276–8.
100 See above n. 1.
101 See above Section 202, at 1.
102 For a summary of the opinions of experts, see ICRC, Occupation and other Forms of Administration of Foreign Territory (n. 113), 24.
118 H. Lauterpacht (ed.), Oppenheim’s International Law, Vol. II, 539; Greenspan, id. 382.
122 See, e.g., the statement by the representative of Israel, SCOR 549th Meeting, 26 July 1951, paras. 40–1; S. Rosenne, Israel’s Armistice Agreements with the Arab States (Tel-Aviv: Blumstein, 1951), 45.
129 See commentary to Section 102.
132 Kleffner, above (n. 108).
134 On these, see R. Lesaffer (ed.), Peace Treaties and International Law in European History—From the Late Middle Ages to World War One (CUP, 2004), 36, 404; S. Neff, War and the Law of Nations—A General History (CUP, 2005), 117–8. See also Greenwood in the 2nd edn of this Handbook at 71.
135 For international armed conflicts, cf. Dinstein, War, Aggression and Self-Defence above (n. 18), 47–50.
141 61 Annuaire de l’Institut (1985) Vol. II, 278. For the special case of human rights treaties, see the commentary on Sections 251–4, below. See also UN International Law Commission (ILC), Draft Articles on the effect of armed conflicts on treaties and commentaries thereto (2011) Official Records of the General Assembly, 66th Session, Supplement No. 10 (A/66/10), paras. 100 and 101.
143 See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 25, and ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, paras. 102–42, at 106. See also ‘Resolution XXIII Human Rights in Armed Conflict’ in Schindler/Toman (eds), The Laws of Armed Conflict, 4th edn (Nijhoff, 2004), 347 and M. Bothe, ‘The Historical Evolution of International Humanitarian Law, International Human Rights Law, Refugee Law and International Criminal Law’ in H. Fischer/U. Froissart/W. Heintschel v. Heinegg/C. Raap (eds), Krisensicherung und Humanitärer Schutz—Crisis Management and Humanitarian Protection, Festschrift für Dieter Fleck (Berliner Wissenschafts-Verlag, 2004), 37–45.
144 General Comment No. 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc. CCPR/C/21/Rev.1/Add. 13 (4 September 2006), paras. 2, 10, 11; see also General Comments Nos. 15, 18, and 28. All General Comments are available at <http://www.unhchr.ch/tbs/doc.nsf>.
145 See, e.g., Human Rights Committee, General Comment No 31 (n. 9483) at 11; ICRC, ‘IHL in brief—What is the difference between humanitarian law and human rights law?’ (2002) <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5KZMUY>. Note that far less frequently, the relationship between international humanitarian law and human rights law is described as mutual exclusion so that human rights law ceases to apply in times of armed conflict. This is the position taken by the US in certain instances, for which see P. Alston, J. Morgan-Foster, W. Abresch, The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the ‘War on Terror’, (2008) Vol. 19, No. 1 EJIL 185–90, and discussion of that position at 191–7.
147 For this and other pertinent examples, see M. Sassòli, ‘Le droit internationale humanitaire, une lex specialis par rapport aux droits humains?’ in Aue/Flückiger/Hottelies (eds), Les droits de l’homme et la constitution: Études en l’honneur du Professeur Giorgio Malinverni (Schulthess, 2007), 375–95, 386.
148 Id. 393–5.
149 International Law Commission, 58th Session (1 May–9 June and 3 July–11 August 2006), Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682, para. 56.
157 Cf., Arts. 100–1 of the Third Geneva Convention, Arts. 68 and 75 of the Fourth Geneva Convention, Arts. 76(3), 1st sentence; Art. 6(4) of Additional Protocol II [extending prohibition to carry out death penalty to ‘mothers of young children’].
158 Art. 77(5) of Additional Protocol I [only prohibiting the execution of, but not to impose, the death penalty for an offence related to the armed conflict on persons under the age of eighteen at the time the offence was committed].
159 Cf. University Centre for International Humanitarian Law, Expert Meeting on the Right to Life in Armed Conflicts and Situations of Occupation (2005), <http://www.adh-geneve.ch/pdfs/3rapport_droit_vie.pdf>, 23. Whether and to what extent human rights law also governs the use of force in calm situations of occupation for other purposes remains subject to divergent opinions among experts, see id.
160 M. Sassòli and L. Olson, ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’ (2008) 90 No. 871 IRRC 599–627, at 613–4.
164 See, e.g., the positions taken by the Netherlands, Israel, the UK, and the US before the Human Rights Committee, referred to in C. Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310–55, 326 (n. 64). For a critique of the position taken by the Human Rights Committee, see M. J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 AJIL 119–41.
165 See in particular for observations on military occupation or control by a state party, D. McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’ in F. Coomans/M. T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004), 63–6.
167 For an overview, see C. Droege, above (n. 164), 325–7.
172 ECtHR, Bankovićand others v Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the UK (Application no. 52207/99), Grand Chamber, admissibility decision of 12 December 2001, 41 ILM 517 (2002), paras. 75–80.
173 ECtHR, Ocalan v Turkey, Application no. 46221/99, judgment of 12 May 2005, Ocalan, para. 91; Issa and others v Turkey, Application no. 31821/96, judgment of 16 November 2004, Issa v Turkey, para. 71 [‘under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State’].
176 See, e.g., ECtHR, Ocalan v Turkey, Application no. 46221/99, judgment of 12 May 2005, para. 91 (Grand Chamber) [concerning actions of Turkish officials in Kenya]; Issa and others v Turkey, Application no. 31821/96, judgment of 16 November 2004, para. 71 [concerning military operations of Turkish armed forces in Iraq].
177 See notably UK House of Lords, R (on the application of Al-Skeini) v Secretary of State for Defence, Application for judicial review, (2007) UKHL 26; ILDC 702 (UK 2007), paras. 76–80 per Lord Rodger of Earlsferry, para. 127 per Lord Brown of Eaton-Under-Heywood
182 Salas v US, Case 10.573 (1994), para. 6 [‘use of military force [that] has resulted in non-combatant deaths, personal injury, and property loss’ as falling within the territorial reach of a state’s human rights obligations].
183 Above (n. 172) and text.
186 For the UN, see in particular the reference to the promotion and encouragement of respect for human rights as one of its purposes (Art. 1(3) UN Charter), but also Decision No. 2005/24 of the Secretary-General’s Policy Committee on Human Rights in Integrated Missions, which directs that human rights be fully integrated into peace operations and all human rights functions coordinated by one component. See also UN Department of Peacekeeping Operations & United Nations Department of Field Support, United Nations Peacekeeping Operations: Principles and Guidelines—Capstone Doctrine (United Nations, 2008), 14, 27.
187 That customary process consists, among others, of instances in which UN organs and other bodies have addressed organized armed groups in monitoring human rights and/or condemning human rights violations. See, e.g., Commission on Human Rights, UN Doc. E/CN.4/2005/3 (7 May 2004) CHR, 61st Session, Item 4, Situation of Human Rights in the Darfur Region of the Sudan; UN Doc. E/CN.4/2006/53/Add.5 (27 March 2006) Report of the Special Rapporteur, Philip Alston, Addendum, ‘Mission to Sri Lanka’ (28 November to 6 December 2005) especially paras. 24–7 and accompanying footnotes. For the Security Council, see e.g. SC Res.1814 (2008) on the situation in Somalia, para. 16; SC Res. 1778 (2007) on the situation in Chad, the Central African Republic and the subregion, Preamble. For further relevant resolutions of the Security Council and the General Assembly pertaining to violations of human rights (as well as humanitarian law) committed in the Former Yugoslavia, Afghanistan, the Sudan, Sierra Leone, Ivory Coast, the Congo, Angola, Liberia, and Somalia, and further discussion, see C. Tomuschat, ‘The Applicability of Human Rights Law to Insurgent Movements’ in H. Fischer et al., above (n. 143) 577–85.