- Armed conflict, international — Armed conflict, non-international — War crimes — Customary international law
As discussed in the previous chapter, in the post-1949 period, there was a concerted effort to move away from regulation of non-international armed conflict on an ad hoc basis. Regulation through ad hoc commitments continued—as with the 1967 Operational Code of Conduct issued by the Federal Government of Nigeria during the attempted secession of Biafra; and through the 1960 accession to the Geneva Conventions on the part of the Provisional Government of the Algerian Republic during the Algerian war of independence—but they continued to suffer from the limits of ad hoc-ism and partiality.1 The systematic regulation of non-international armed conflict involved attempts at assimilating the law of non-international armed conflict to the law of international armed conflict. However, these attempts by and large did not succeed. In the period between 1949 and the mid-1990s, only a minimum of conventional international humanitarian law rules governed non-international armed conflicts, namely common Article 3 of the 1949 Geneva Conventions, Article 19 of the 1954 Hague Convention on Cultural Property, and Protocol II Additional to the Geneva Conventions of 1977. Each instrument was an advance on that which existed previously, but each also provided for only a minimum of protection for those caught up in non-international armed conflicts. Common Article 3 did not contain any rules on the conduct of hostilities. Article 19 of the Hague Convention on Cultural Property is necessarily limited in subject matter, being contained in a treaty devoted to the protection of cultural property. Additional Protocol II, still the only international humanitarian law treaty devoted solely to non-international armed conflict, represents a pared-back version of earlier drafts. The customary international humanitarian law that governed non-international armed conflict was even less clear.
All this changed dramatically in the mid-1990s. Whereas previously, rules were initiated by non-state bodies and concluded in diplomatic conferences, in the 1990s, judicial bodies entered the arena. These were primarily international judicial bodies, but certain national courts also played an important role. Concerns relating to state sovereignty thus featured far less strongly and were secondary to a desire to increase humanitarian protection. The relevant judicial bodies transformed the law of non-international armed conflict primarily through drawing on the law of international armed conflict, either analogizing the law of non-international armed conflict to it, or extending its scope of application to cover non-international armed conflicts. These developments were later confirmed in large part, in diplomatic conferences. Suggestions to this effect posited in the previous decades2 were finally implemented.
References(p. 55) Given that the relevant judicial bodies were international criminal tribunals, shaping of the law of non-international armed conflict took place largely through international criminal law.
International human rights law had also developed considerably by the mid-1990s, as compared with 1949 or 1977. Accordingly, regard was also had to international human rights law when developing the law of non-international armed conflict. Indeed, through the influence of international criminal law and international human rights law, the law that governs non-international armed conflict today can be described as a body of international law rather than solely a body of international humanitarian law, although international humanitarian law continues to constitute its bulk.
It is the identification of the customary international humanitarian law rules that govern non-international armed conflict, in particular, that has developed since the mid-1990s. Up until that point in time, the view that there were more than simply a handful of customary rules applicable in non-international armed conflict was never seriously entertained and identifying even those rules proved problematic. It was generally agreed by the mid-1980s that there existed at least some customary rules of non-international armed conflict. However, identification of those rules proved more elusive. The International Court of Justice (ICJ) in Nicaragua took the view that the rules contained in common Article 3 reflected ‘elementary considerations of humanity’ applicable in international and non-international armed conflicts alike.3 This led to expressions of surprise on the part of many, but more due to the lack of citation of state practice and opinio juris on the part of the Court than to its actual conclusion.4 Beyond common Article 3, the position was even less clear. General Assembly Resolutions 2444 (XXIII) and 2675 (XXV), with their various protections for the civilian population, were considered to reflect the state of customary international law applicable to all armed conflicts.5 However, the customary status of a prohibition on belligerent reprisals, as contained in GA Res 2675 (XXV), was disputed some 30 years later,6 suggesting that not every principle contained in the resolutions reflected References(p. 56) customary international law. Leading commentators expressed their views on the customary status of particular Additional Protocol II provisions, but the relevant provisions were few and far between and the views were not always consistent with one another.7 There had been some suggestion that the basic rules of international humanitarian law were of customary status in respect of large-scale non-international armed conflicts.8 However, as late as 1994, the Commission of Experts appointed to investigate violations of international humanitarian law committed in the former Yugoslavia wrote that ‘[i]t is unlikely that there is any body of customary international law applicable to internal armed conflict which does not find its root in’ common Article 3, Additional Protocol II, and Article 19 of the Hague Convention on Cultural Property.9 Thus, precisely which rules beyond common Article 3 had customary status was unclear and did not benefit from uniform agreement.
Since the mid-1990s, the customary international humanitarian law rules that have been identified as applicable in non-international armed conflicts have grown dramatically. Although there remains some debate as to precisely which rules have customary status, that there is a sizeable body of custom is no longer questioned. This is due, primarily, to two important contributions, namely the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the 2005 Customary International Humanitarian Law study concluded under the auspices of the International Committee of the Red Cross (ICRC).10 Other lists of customary international humanitarian law rules also exist and should not be overlooked.11 The creation of the International Criminal Tribunal for Rwanda (ICTR) in 1994, with its explicit criminalization of violations of common Article 3 and of Article 4 of Additional Protocol II, also proved important.12
Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State?13
Or, as was put so eloquently later on in the Decision:
elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.14
Decades earlier, at the Diplomatic Conference of 1949, the USSR advocated a similar approach: ‘[i]nhuman treatment of human beings and any other acts which would be condemned in the case of international war between States should likewise be condemned in the instance of civil war.’15 However, it was not to be. Likewise, the attempt to regulate all types of armed conflicts through a single Protocol failed in the 1970s but largely succeeded in the 1990s through identification of rules of customary international law. This modelling on the law of international armed conflict has been the consistent approach of the ICTY. In Delalić et al, the Appeals Chamber argued that, ‘to maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person’.16 The Halilović Trial Chamber went further, stating that, ‘[w]hen an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature … there is no need for the Trial Chamber to define the nature of the conflict in the present case’.17 The reason for the Trial Chamber’s position was that common Article 3, as a reflection of customary international law, applies in all armed conflicts.18
Pursuant to this approach, the ICTY has read into the customary equivalents of sparse Additional Protocol II provisions, all the detail of the customary rules of international armed conflict. For example, Article 13(2) of Additional Protocol II reads, in a rather concise fashion: ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.’ The customary equivalent of the provision has been interpreted by the ICTY to include a prohibition on indiscriminate attacks;19References(p. 58) a prohibition on disproportionate attacks,20 which itself has been interpreted as giving rise to a requirement that certain precautions be taken;21 and a prohibition on attacks against civilian objects,22 which, in turn, has given rise to a prohibition on the ‘wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.23 These more detailed rules stem from the law of international armed conflict, in particular from Additional Protocol I and the Hague Regulations.24 The ICTY has thus taken the view that the succinct provisions of Additional Protocol II contain within them more detailed rules, at least at the level of customary international humanitarian law. This position supports the view of Additional Protocol II, noted above, as containing the core concepts and rules, lacking only in detail.25 Detailed provisions were thus read into the more general rules of the relevant instrument. In this sense, at least at the level of judicial interpretation, the principles versus provisions debate is of lesser importance.26
The general position of the ICTY was that there exists a common body of law applicable to both sorts of armed conflict and which is derived from the international humanitarian law that governs international armed conflict. This reflects the position taken by the ICTY Office of the Prosecutor (OTP), which has been to argue that ‘the essential substance of the detailed [Additional Protocol I] provisions concerning unlawful attacks applicable to international conflicts is also contained in the single relevant sentence in APII [Additional Protocol II] which is applicable to internal conflicts. This is a conscious effort on the part of the OTP, successful to date, to argue that the law concerning unlawful attacks against civilians is, in substance, the same in both international and internal conflicts’.27 In fact, the approach has not been limited to the rules on targeting but has been adapted to the law of non-international armed conflict more generally. Thus, in Martić, a Trial Chamber held that ‘[t]here exists, at present, a corpus of customary international law applicable to all armed conflicts irrespective of their characterisation as international or non-international armed conflicts’.28
A similar approach was adopted, albeit implicitly, by the Customary International Humanitarian Law study. Although the study did not set out any particular novel approach to the determination of the content of customary international humanitarian law,29 the manner in which that determination took place suggests that it, too, derived the rules from the law of international armed conflict. The study compiles all the relevant practice (treaties, military manuals, national legislation, case-law, and the like) References(p. 59) on a particular issue without separating out that relating to an international armed conflict from that relating to a non-international armed conflict.30 The rules identified from this practice are divided into those pertaining to international and non-international armed conflicts, but by and large, single rules cover both conflicts and it is only in rare cases that the rule diverges as between the two.31 Given that, historically, international armed conflicts benefited from far greater legal regulation than non-international armed conflicts, the law of international armed conflict has been extended to regulate non-international armed conflict rather than a separate body of law independently emerging. Thus, in their introduction to the study, the authors note that ‘the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to non-international armed conflicts’.32 Although the study was set out in this manner because state practice was judged as not making the distinction, certain value judgements did have to be made, such as the weight to be given to state military manuals that did not delineate their scope of application. Many of these manuals were drawn up at a time in which there was little by way of international humanitarian law applicable in non-international armed conflict. Accordingly, materials that were drawn up for use in one context, namely international armed conflicts, were utilized to regulate a different context, namely non-international armed conflicts. Implicit in the study is, then, an approach of looking to situations of international armed conflict for guidance.
It is not just the ICTY and the Customary International Humanitarian Law study that have adopted the approach of looking to the international humanitarian law of international armed conflict. The Inter-American Commission on Human Rights has expressly stated that ‘[m]any of the rules in Protocol I, which applies only to international armed conflicts, are particularly useful referents for interpreting the substantive content of similar, but less detailed, provisions in Protocol II and common Article 3’.33 The Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL) also applied various provisions of Additional Protocol I by analogy to the non-international armed conflict in El Salvador and judged the conduct of the parties against them.34 This was done prior to the creation of the ICTY and before the idea of a study on Customary International Humanitarian Law was conceived. Indeed, during the civil war in Paraguay in 1948, the ICRC and national Red Cross societies used provisions of the 1929 Geneva Convention for the relief of the wounded and sick by analogy, a use which caused ‘legitimate pride’.35 More generally, as the following chapter indicates, prior to the conclusion of common Article 3, the approach was necessarily one of analogy to the law of international armed conflict in extracting References(p. 60) commitments from the warring parties, given that international humanitarian law simply did not regulate non-international armed conflicts on a systematic basis. However, it is largely through the jurisprudence of the ICTY and the Customary International Humanitarian Law study that the customary international humanitarian law applicable to non-international armed conflict has been identified and developed.
The ICTY has identified a substantial body of customary international humanitarian law that is applicable equally to all armed conflicts. In the area of the conduct of hostilities, various chambers have held that such rules as the prohibition on attacks against civilians,36 and attacks against civilian objects,37 the wanton destruction of property,38 the protection of cultural property,39 the prohibitions on the destruction of religious objects,40 plunder, and pillage,41 and the prohibition on the use of chemical weapons42 are all of customary status and applicable to international and non-international armed conflicts alike. Although, at first, the Tribunal was criticized for going too far,43 such criticisms have since faded.44 States themselves have drawn up a list of war crimes applicable in non-international armed conflicts, by implication affirming a list of customary international humanitarian law rules applicable therein. The approach of Tadić, by which the law of non-international armed conflict would look to the law of international armed conflict, ‘was put to the vote of the community of States’45 and passed.
Although there has been some hesitation surrounding particular war crimes and criticism that certain violations really should have found their place on the list of war crimes in the Rome Statute,46 the debates tend to turn on the criminalization of the rule rather than its applicability to non-international armed conflict. Similar criticisms of the ICTY jurisprudence are often directed at the so-called ‘fourth Tadić condition’, namely that violation of the particular rule ‘must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule’, rather than any of the first three ‘Tadić conditions’, namely the violation of a rule of international humanitarian law, the customary or conventional nature of that rule, and the severity of the violation.47 Accordingly, it is generally recognized that there exists a References(p. 61) sizeable body of customary international humanitarian law applicable to non-international armed conflict.
Such a conclusion is supported by the Customary International Humanitarian Law study. One of the purposes of the study was ‘to determine whether customary international law regulates non-international armed conflict in more detail than does treaty law and if so, to what extent’.48 The study found that of 161 rules of customary international humanitarian law, the vast majority of them are or may be applicable in non-international armed conflict.49 Although there has been some criticism over particular rules and aspects of the methodology,50 the general tenor of the study has not been criticized, nor has its conclusion that a large number of international humanitarian law rules are applicable to situations of non-international armed conflict.51 Accordingly, it is of undoubted importance, as demonstrated by its citation in judgments of leading courts and tribunals almost immediately after publication.52 The existence of a substantial body of customary international humanitarian law governing non-international armed conflict and extending beyond the norms contained in common Article 3 and Additional Protocol II is, most importantly, recognized by states and non-state armed groups.53
A transformation has also taken place at the level of conventional law. Conventional international humanitarian law instruments concluded since the mid-1990s regulate non-international armed conflicts almost as a matter of course. This is not to say that international armed conflicts and their non-international counterparts are always treated alike; on occasion, their regulation varies. However, the more recent international humanitarian law treaties do apply systematically to both sorts of armed conflict.
Some conventions treat international and non-international armed conflicts exactly alike. The 1993 Chemical Weapons Convention, for example, regulates the two types of armed conflict in precisely the same manner. Article 1 of that Convention provides that ‘[e]ach State Party to this Convention undertakes never under any circumstances’ to act in a particular manner. The phrase ‘never under any circumstances’ covers all types of armed References(p. 62) conflict and was considered to render unnecessary a scope of application clause.54 This is also true of the 1997 Ottawa Convention on Anti-Personnel Mines, and the 2008 Cluster Munitions Convention, both of which use similar language.55 Also regulating non-international and international armed conflicts alike are the 1999 Second Protocol to the Hague Convention on Cultural Property,56 and the 2003 Protocol on Explosive Remnants of War (Protocol V to the Convention on Certain Conventional Weapons).57 Other conventions treat the two sorts of armed conflicts in different ways but still regulate both. For example, the 1998 Rome Statute of the International Criminal Court (Rome Statute) contains two lists of war crimes, those applicable in international armed conflict and those applicable in non-international armed conflict, with the former list being more extensive than the latter.58 Either way, treaties drafted today regulate non-international armed conflict almost as a matter of course.
Furthermore, certain treaties that were adopted prior to the mid-1990s have since been amended to bring non-international armed conflicts within their scope of application or to extend their regulation. The 1980 Convention on Certain Conventional Weapons is the prime example of this approach. During the first Review Conference for the Convention in 1996, Protocol II to the Convention, the Mines Protocol, was amended to include non-international armed conflicts within its scope. The original limitation to international armed conflicts was recognized as a shortcoming, given that the majority of casualties of anti-personnel mines were to be found in states involved in non-international armed conflicts. As Spain put it, speaking on behalf of the European Union, ‘it was precisely in such conflicts, the most common kind at present, that the indiscriminate use of anti-personnel mines occurred most frequently and had the most devastating effects on innocent civilians’.59 Accordingly, the scope of application of the Protocol was amended to be the same as that of common Article 3.60
Some years later, in 2001, the framework Convention itself was amended, precisely so as to apply in non-international armed conflicts. Again, the scope of application of common Article 3 was used,61 and the amendment benefitted from broad support.62References(p. 63) Accordingly, Protocols I–IV to the framework Convention are applicable to non-international armed conflicts for states that ratify the amendment to the framework Convention.63 Indeed, even prior to the amendment, certain states had taken the view that the Convention should apply to non-international armed conflicts. When the President of the United States transmitted the original Convention to the Senate for its advice and consent as to ratification, in 1994, the President proposed that ratification should be accompanied by a declaration that the United States would apply the Convention ‘to all armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions of 12 August 1949’.64 In turn, the Senate, in giving its advice and consent, stated as a priority for strengthening the Protocol ‘[a]n expansion of the scope … to include internal armed conflicts’.65 Upon ratification of the Convention, other states, too, indicated that they would apply the Convention to armed conflicts referred to in common Article 3.66 The general trend, then, insofar as international humanitarian law treaties are concerned, is to make them applicable to non-international armed conflicts as well as international armed conflicts.
This extension is based on the modelling approach described above, for when drafting an international humanitarian law treaty, it is the international armed conflict that treaty negotiators have in mind. This is necessarily the case with ‘older’ treaties, in that they were intended to apply solely to international armed conflicts, with their extension to non-international armed conflicts coming about at a later date through amendment. However, even in respect of treaties which are intended to govern both international and non-international armed conflicts, the template used is that of the international armed conflict.
That the international armed conflict is viewed as the archetypal armed conflict is evident from two instruments—the Rome Statute and the 1954 Hague Convention on Cultural Property. Article 8 of the Rome Statute contains two lists of war crimes: those applicable in international armed conflict and those applicable in non-international armed conflict. The list of war crimes in non-international armed conflict that do not relate to violations of common Article 3 is largely drawn from the list of war crimes applicable in international armed conflicts,67 and not from Additional Protocol II. This is also true of the amendments to the Rome Statute made at the 2010 Review Conference of the Statute of the International Criminal Court. In proposing to add the use of certain weapons to the list of war crimes applicable in non-international armed conflict, Belgium provided as its justification the fact that ‘[t]he use of the weapons listed in this draft amendment is already incriminated by [Article 8(2)(b)References(p. 64) (xvii)–(xix)] of the Statute in case of an international armed conflict’.68 The preamble to the resolution amending the Statute reflects this point, repeating on numerous occasions that the crimes intended for inclusion are already criminalized in the Rome Statute in international armed conflicts.69 Thus, the model was, and remains, that of the law of international armed conflict.
The same approach is evident, for less fortunate reasons, in the Hague Convention on Cultural Property. That Convention contains a number of rules relating to the protection of cultural property in situations of armed conflict. Article 19 provides that, ‘[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property’. The provision is not a model of clarity; quite what is meant by the provisions that relate to ‘respect for cultural property’ is unclear.70 This suggests that even treaties that are intended to be applicable to all armed conflicts are actually designed for international armed conflicts, with their application to non-international armed conflicts tagged on at the end. The fact that application to non-international armed conflict is contained in an article separate from the scope of application clause and at the end of the treaty also supports such a conclusion.
The model of the international armed conflict holds true for the sole treaty that applies to non-international armed conflict alone. Additional Protocol II, modelled as it was on Additional Protocol I, took as its starting point the law of international armed conflict. Indeed, the question was not so much whether to assimilate Additional Protocol II to Additional Protocol I, but how far the assimilation should go.71 This approach led to something of a debate at the Diplomatic Conference. Some delegates took the view that the two Protocols should ‘closely resemble’72 one another, or mirror one another to the largest extent possible.73 Others took the view that such an approach would be inappropriate.74 One delegate recognized that ‘several of the complexities of draft Protocol II were attributable to their having been discussed by experts too familiar with similar provisions in draft Protocol I’.75 These positions should not always be taken at face value given that some delegations wanted little or no regulation of non-international armed conflict, while others favoured a single protocol applicable to all armed conflicts. However, ultimately, the approach adopted was one of drawing on Additional Protocol I.76
References(p. 65) What these examples demonstrate is that, when drafting an international humanitarian law treaty, the negotiators have in mind international armed conflicts as the archetypal situation. The rules are then extended to apply to non-international armed conflicts, or non-international armed conflicts are added on to the scope of application clause of the treaty. This is despite the fact that non-international armed conflicts are more numerous than their international counterparts.
Ultimately, then, it is from the law of international armed conflict that the law of non-international armed conflict has emerged. That the general approach in the development of the international humanitarian law of non-international armed conflict has been to model on the international humanitarian law of international armed conflict is unsurprising. It reflects similar statements made in the 1960s and 1970s by private bodies and progressive states.77 It spilled over into the mainstream in later decades, primarily through the work of judicial bodies that were not constrained by concerns of state sovereignty. To extend a law to cover an analogous situation is also markedly easier than to create a new law, and in many ways there was no feasible alternative to regulation by analogy. At another level, the traditional view has been that it is the law of international armed conflict that represents the high watermark of regulation and the standard towards which to aim. As the introduction to the Customary International Humanitarian Law study notes, it is simply a matter of ‘[c]ommon sense’ that the relevant rules ‘should be equally applicable in international and non-international armed conflicts’.78 This is demonstrated in the ever-increasing tendency to call for a uniform body of international humanitarian law and the removal of the international/non-international distinction.79 Thus, an alternative to the modelling approach was not sought.
2.3 Methodological difficulties with regulation by drawing on the law of international armed conflict
Despite being the predominant approach, regulating non-international armed conflict by looking to the law of international armed conflict suffers from a number of difficulties. These difficulties exist in three particular areas, namely the close relationship between the situations in which particular norms apply and the content of those norms, the differing levels of protection afforded by the law of international armed conflict and the law of non-international armed conflict on the same subject matter, and the differences between international and non-international armed conflicts themselves.
There is an ‘intimate nexus’80 between the situations in which the international humanitarian law of non-international armed conflict applies and its normative content. Thus, the report of the 1972 Conference of Government Experts reads: ‘[t]he interdependence of the [draft] Protocol [II]’s field of application and its content was repeatedly stressed’,81 and the same was true of interventions of certain delegates at the 1974–7 Diplomatic Conference.82 For example, the ICRC stated that the material field of application of the Protocol was its ‘cornerstone … for on its scope the whole contents of the instrument would depend’.83 Similarly, as Canada put it, ‘[t]he key to the height of threshold we suggest lies in the expression “to implement this Protocol”, for the threshold of the Protocol will now clearly depend upon the contents of the Protocol’.84 Indeed, during the Diplomatic Conference, many delegates were unwilling to express their position on the applicability and content of particular rules without first knowing the threshold for application of the Protocol.85 The scope–content nexus is also clear from the text of Additional Protocol II itself, with Article 1, entitled ‘Material field of application’, expressly linking application of the Protocol to the ability of the armed group to implement it.86
The scope–content nexus of the law of non-international armed conflict deserves some consideration given the tendency in recent years, by some highly influential bodies, to lower the threshold for the applicability of the norms while simultaneously increasing the normative content. In considering whether certain rules of international humanitarian law are applicable to a non-international armed conflict, the ICTY has taken the view that it need only determine whether there existed an armed conflict at the time in question. It has dispensed with the further issue of whether the Additional Protocol II threshold criteria are satisfied. Thus, customary rules of Additional Protocol II have been applied to all non-international armed conflicts and not simply those meeting the higher threshold of the Protocol.87 Occasionally, the ICTY seems to go so far as to indicate that the Additional Protocol II threshold is not required even for application of Additional Protocol II qua treaty,88 but such a position would be incorrect. Not all courts have opted for this approach, however, with the Special Court for Sierra Leone distinguishing between violations of common Article 3 and Additional Protocol II and requiring that the additional threshold criteria be proven in respect of violations of the latter.89 Nonetheless, the general trend of ‘reading out’ the strict Additional Protocol II threshold is continued in the Rome Statute, an important References(p. 67) point given its ratification by states. The list of war crimes in non-international armed conflict is split into violations of common Article 3 (Article 8(2)(c) of the Rome Statute) and other serious violations of the law of non-international armed conflict (Article 8(2)(e)). There is some confusion as to whether the latter provision is subject to a higher threshold than the former, given that it applies in a ‘protracted armed conflict’.90 However, the better view is that it is not; and even if it is, the threshold is certainly not that of Additional Protocol II.91 This trend of omitting the Additional Protocol II threshold is taken further in the Customary International Humanitarian Law study which does not introduce any threshold for the application of the various rules identified because it was determined that states did not make that distinction in practice.92
[t]he underlying difficulty was that of striking the right balance between scope and content. If the level of application was set so high that only the ‘classical’ civil war was covered, Protocol II would be useless; if it was set so low that it covered police action against sporadic criminal or terrorist acts, it was unlikely to be accepted by states. The obligations imposed on States and dissidents should not be so vague as to be nugatory, or so high as to set an impossible standard.93
As will be discussed, purported sovereignty concerns are to be treated with some caution.94 However, the scope–content nexus is important for a different reason. Increasing the normative content while simultaneously reducing or removing any threshold brings with it a danger of overloading. At some stage, a tipping point will be reached whereby the normative content overwhelms the capacity of the parties to the conflict, in particular the non-state armed group. To increase the obligations to such an extent that the armed group is unable to meet them does not serve a useful purpose. The danger is that the armed group cannot comply with the rules which may, in turn, lead to non-compliance on the part of the state and violations spiralling out of control. The issue of the capabilities of non-state armed groups is discussed in further detail below.95
Alternatively, increasing the normative content may have the effect of raising the threshold at which a non-international armed conflict exists. As will be seen in Chapter 5, a non-international armed conflict is defined by reference to a certain intensity of violence and a certain measure of organization of the armed group.96 The latter is judged, in part, on the ability of the armed group to implement the law and to enforce breaches of it.97 Accordingly, to increase the content of the law is to require a greater degree of organization on the part of the armed group, raising the threshold at which a conflict will exist. Just as scope affects content, content affects scope. Indeed, at the 1972 Conference of Government Experts, it was said that ‘in order to solve the References(p. 68) problem of the definition [of non-international armed conflict] … the essential thing was to define the rights and duties of the combatants involved … ; once this was done, it would be possible to find a definition adequately circumscribing the situations to be envisaged’.98 If the increased content of the law does raise the threshold for a non-international armed conflict to exist that may prove problematic. Although that is not necessarily a bad thing—the law of non-international armed conflict should only enter into force when the parties to the conflict are able to comply with it;99 below that level, international human rights law would be the applicable law—it is not always appreciated that this will be the consequence.
The scope–content nexus is an important one. Its balance has been recalibrated in recent years and this has potential downsides. However, the recalibration is not inherently negative. Much depends on when the law enters into force, the capabilities of the parties, and the substantive norms themselves.
A further concern with the regulation of non-international armed conflict by looking to the law of international armed conflict is that, in certain, albeit very few, areas, the international humanitarian law of non-international armed conflict has the potential to offer greater protection than the international humanitarian law of international armed conflict. By transposing the latter into the former, these greater protections have been reduced. Three examples serve to illustrate the point. Insofar as child soldiers are concerned, Additional Protocol II provides that, ‘children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities’.100 This stands in contrast with Additional Protocol I, which provides that, ‘[t]he Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces’.101 This latter provision is weaker in two respects than its non-international counterpart. It requires only that ‘all feasible measures’ be taken and it prohibits only ‘direct’ participation in hostilities. As will be discussed below, other instruments relating to child soldiers draw on the standard of the law of international armed conflict and not non-international armed conflict, thus weakening the relevant protections.102
A second example of the law of non-international armed conflict offering greater protection relates to the prohibition on deportation. In international humanitarian law applicable in international armed conflict, the prohibition on deportation applies only from occupied territory.103 In international humanitarian law applicable in non-international armed conflict, the prohibition on deportation applies in respect of territory generally, provided the threshold of Additional Protocol II is met.104 Familiarity with the law of international armed conflict has led to suggestions that a References(p. 69) prohibition on deportation in non-international armed conflict simply does not exist in light of occupation not being an accepted notion.105
The two examples considered immediately above exist at the level of conventional international humanitarian law. The same approach can also be seen at the level of customary international humanitarian law in relation to a different norm, namely the protection of works and installations containing dangerous forces. In non-international armed conflict, Additional Protocol II prohibits the targeting of certain listed objects containing dangerous forces if it would lead to the release of dangerous forces that would cause severe losses among the civilian population. This is the case even if the objects in question are military objectives.106 The equivalent rule in Additional Protocol I is rather different. That rule also provides for a prohibition on the targeting of certain listed objects, but goes on to note that the protection shall cease if the object ‘is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support’.107 Conventional international humanitarian law thus affords greater protection to the objects in situations of non-international armed conflict than it does in international armed conflict. Yet, the Customary International Humanitarian Law study provides that it is the content of the conventional rule of international armed conflict that applies at the level of custom to both international and non-international armed conflicts. This is despite the fact that the prohibition in Additional Protocol II is absolute and does not contain a provision on the cessation of protection. Furthermore, the military manuals of a number of states also contain an absolute prohibition on the targeting of the listed objects in non-international armed conflicts, while accepting that protection may cease in international armed conflicts.108 Likewise, reservations made by states in respect of the Additional Protocol I provision have not been made in respect of the Additional Protocol II provision.109 In the context of this norm, drawing on the law of international armed conflict to regulate non-international armed conflicts, while failing to appreciate the differences between the two sets of rules, has weakened the protection of the relevant rule.110 The position of the Customary study is to be treated with caution.
There is much to be said for modelling the law of non-international armed conflict on the law of international armed conflict. Many norms can be applied in both sorts of conflicts without any difficulty and, at least insofar as those rules are concerned, there is no reason for a differentiation between the two sorts of conflicts. Much of the law of targeting or relating to the humane treatment of persons hors de combat falls into this category. As the USSR delegate queried in 1949:
I should be very glad if the supporters of [the alternative position] would explain why, in the case of conflicts of a non-international character, it would be impossible to apply the provisions of the Wounded and Sick Convention or those of the Civilians Convention, which stipulate, for References(p. 70) instance, that civilian hospitals may in no circumstances be attacked, and that women and children shall at all times enjoy particular respect and protection, that, in order to bring relief to the civilian population, the unrestricted transport and distribution of various shipments, such as medicines and medical equipment, shall be guaranteed.111
However, the application of other norms to non-international armed conflict may be more difficult. As Romania put it at the 1974–7 Diplomatic Conference, ‘[t]here was a fundamental difference between international and non-international armed conflicts, and it would be a mistake automatically to transpose the provisions of draft Protocol I to draft Protocol II’.112 Such difficulty arises with respect to three particular classes of norms.
One set of norms may be considered inapplicable in non-international armed conflict by the state concerned for reasons of sovereignty. The prohibition on perfidy and the prohibition on wanton destruction may be considered to fall into this category. A lengthy debate took place during the 1974–7 Diplomatic Conference as to the applicability of the prohibition on perfidy to non-international armed conflict. It was said, for example, that if the Protocol set out that ‘killing by resort to perfidy was prohibited, it might be deduced a contrario that killing without resort to such methods was allowable’,113 and that any clause on point would appear ‘to indicate that there were two ways of rebelling against a legitimate Government: a legal way of killing, injuring or capturing soldiers belonging to the government forces, and an illegal way’.114 Similarly, it has been said of wanton destruction, that is to say, the prohibition on the destruction or seizure of property of an adversary unless demanded by imperative military necessity, that, ‘no state would accept that “imperative military necessity” is a principle that the forces fighting to overthrow the state’s government may in any way benefit from’.115 Indeed, it has been suggested that to make any rule that contains an element of military necessity or proportionality applicable to non-international armed conflicts would be objectionable to states as the rule would ‘weaken the hand of [the] government’s forces’.116 For related reasons, some states have been uncomfortable with the use of the word ‘reprisal’ in the context of belligerent reprisals and preferred alternative formulations, such as ‘measures of retaliation comparable to reprisals’,117 ‘actions similar to those of reprisal’,118 or ‘acts of extreme retaliation’.119 The concern was that, from a political point of view, the word ‘reprisal’ ‘gave the Parties to a conflict a status under international law which they had no right to claim’.120 However, sovereignty concerns can be overstated. They are put forward by some states but not by others; they are raised in respect of certain rules but not others, and oftentimes they indicate a more general concern surrounding the regulation of non-international armed conflict rather than principled objection to the particular rule at hand. The strength of such concerns has also been ameliorated significantly in recent years, primarily by acceptance of the list of war crimes in non-international armed conflict over which the International Criminal Court (ICC) has jurisdiction, such list being approved by states. The list includes the very crimes of References(p. 71) ‘[k]illing or wounding treacherously a combatant adversary’ and wanton destruction.121 It should also be recalled that the law of non-international armed conflict does not provide the parties to the conflict with a right to undertake certain actions. Rather, it prohibits certain actions and regulates other conduct should the parties choose to engage in particular endeavours.
One sovereignty concern that has had, and continues to have, a very real impact on the substantive law of non-international armed conflict relates to the lack of combatant privilege. Pursuant to this idea, combatants have the authority to participate in hostilities. Accordingly, they cannot be prosecuted for taking part in hostilities and committing lawful acts of war. Importantly, however, the notion of combatant, and therefore also the combatant privilege, is limited to international armed conflicts. States are unwilling to afford the combatant privilege to members of non-state armed groups that fight against them. Instead, they leave open the possibility of prosecuting such members for treason, sedition, or some other offence under domestic law. For this reason, the law of non-international armed conflict cannot be exactly equivalent to the law of international armed conflict. The lack of combatant immunity in non-international armed conflict is recognized as a hurdle for advocating compliance with the law on the part of non-state armed groups. If members of armed groups are to be prosecuted regardless of their compliance with international humanitarian law, there is little incentive for them to comply with it. This is a matter that will be re-visited in Chapter 12 as it is an area in which further work is needed.
A second set of norms may be considered inapplicable to non-international armed conflict due to the fine line that exists between situations of internal tensions and disturbances and non-international armed conflicts. The use of certain weapons may be lawful in the former situation making the prohibition on their use in the latter more difficult. Falling into this category are expanding bullets. Thus, it has been said that these weapons are widely used in situations of internal tensions and disturbances so as to minimize injury to persons located nearby,122 and to stop the target instantaneously.123 Given the fine line between such situations and situations of non-international armed conflict, it has been suggested that they should not be prohibited in the latter. However, the concern is overstated, for once the situation has been identified as a non-international armed conflict, the prohibition enters into force. Furthermore, the matter is rendered less important today following the 2010 amendment of the Rome Statute to include a prohibition on the use of expanding bullets in non-international armed conflicts.124 Although there may be valid uses for expanding bullets during non-international armed conflicts—to control a riot in a detention camp or in a hostage-rescue operation being the two classic examples125—the same is also true of international armed conflicts. Thus, the nature of the armed conflict as international or non-international is not the determining factor. Rather, it is whether there should be exceptions to the prohibition on the use of expanding bullets in certain situations. Accordingly, the idea that there is a category of norms that is not applicable to non-international armed conflict for reasons along these lines is not particularly sound.
References(p. 72) A third set of norms that are potentially problematic are those that depend on the capacity of the actors taking part in non-international armed conflicts. The limited capabilities of the actor in question may mean that it is unable to comply with the substance of a particular norm. Care needs to be taken when drawing on the law of international armed conflict given that non-international armed conflicts, by definition, involve at least one non-state armed group. At the 1974–7 Diplomatic Conference, at which Additional Protocol II was negotiated, a concern was adduced on the part of a number of states relating to whether non-state armed groups had the capacity to comply with the rules being drafted.126 Denmark, for example, cautioned against ‘extend[ing] the scope of the rules applicable in certain armed conflicts beyond what the parties to the conflict were able to observe’ as this ‘would have the effect of weakening confidence in international law as a useful means of promoting respect for human rights in armed conflicts’.127 Concern has also been expressed as to whether non-state armed groups would be able to apply the Geneva Conventions as a whole.128
The SPLM/A is fully conscious of the fact that although it is a non-state actor, the world has come to expect from it humanitarian standards, approaching if not on a par with those expected of sovereign governments. This constitutes a daunting challenge and a tremendous burden for our Movement, and unless the international community comes to our aid with increased levels of humanitarian assistance, especially in the field of health, education and human resources development, we will not be able to continue to live up to those high expectations.134
Issues of capacity are thus important. However, it is also important not to overstate the point. The danger of overloading is not true of all non-state armed groups; some have significant capabilities and have indicated that capacity is simply not a problem. A representative of one armed group indicated in 2011 that the group complies with international humanitarian law unless compliance proves ‘impossible’, but there have not been any instances of impossibility to date.135 At the Diplomatic Conference of 1974–7, the Frente de Libertação de Moçambique (FRELIMO) of Mozambique stated that ‘despite disparities in the resources of the parties involved, nothing prevents the national liberation movements from respecting the principles of humanitarian law’ and that ‘[t]he essential requirement … was not the technical apparatus or the material means, but the will to apply the principles of humanitarian law’.136
What all this demonstrates is that armed groups have varying degrees of capability. They are not monolithic entities. As with states, the term ‘armed group’ captures a wide array of actors, from those in control of a sizeable tract of territory and which act as de facto states, to those that barely meet the international humanitarian law requirement of organization. Some engage solely in guerrilla tactics; others, albeit far fewer, have air and sea capabilities, as was the case with the Liberation Tigers of Tamil Eelam (LTTE) of Sri Lanka. Many armed groups are divided into military wings, intelligence wings, and political wings, the latter often based abroad; and some armed groups have human rights, relief, and social divisions.137 These differing capacities of non-state armed groups have consequences for the normative content of particular rules.
Many of the concerns surrounding the capabilities of non-state armed groups would be less problematic if the content of the more demanding norms were ‘translated’ to meet the particularities of a non-international armed conflict. Instead of focusing exclusively on the passage from the 1995 Tadić Decision on Interlocutory Appeal on Jurisdiction to the effect that, what is prohibited in international armed conflict cannot but be prohibited in internal armed conflict,138 equal attention should be paid to a later passage which makes clear that ‘this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts’.139 This could be effected in a number of different ways.
References(p. 74) One option is to identify the core of a norm which would remain intact and applicable in non-international armed conflict. Outside that core, there would be room for interpretation so as to make the obligation achievable for armed groups. The idea that a norm contains a core alongside associated obligations already finds expression in certain conventional rules. For example, Article 5(1) of Additional Protocol II contains the core of the protections afforded to detained persons, providing that ‘the following provisions shall be respected as a minimum’.140 Beyond these minimum core rules, other obligations arise, but they are dependent on the capacity of the detaining entity: ‘[t]hose who are responsible for the internment or detention of the persons referred to in paragraph 1 shall also, within the limits of their capabilities, respect the following provisions.’141 This follows on from the idea expressed at the 1949 Diplomatic Conference that the problem is not so much a lack of ability to comply with entire norms; rather it is the inability of armed groups to comply with norms to the same degree as that of states.142
A second, related, option is to have a general norm and more specific norms linked with that general norm. There is usually little problem at the level of generality: ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack’, for example, or ‘children shall be provided with the care and aid they require’.143 It is at the level of detail that difficulties can arise. This can be illustrated through a norm that is included in common Article 3, Additional Protocol II, and the international humanitarian law applicable in international armed conflict, namely protection of the wounded and sick. Common Article 3 provides, without more, ‘[t]he wounded and sick shall be collected and cared for’.144 Additional Protocol II puts some flesh on these bare bones, containing as it does an entire part on the wounded, sick, and shipwrecked.145 It refers to respect and protection for the wounded and sick, their humane treatment, and medical care;146 searching for and collection of the wounded and sick;147 and specific protection for medical and religious personnel and medical units and transports.148 The international humanitarian law of international armed conflict contains two entire conventions on the wounded and sick. Those Conventions, in addition to providing for the general protections that find reflection in common Article 3 and Additional Protocol II, contain such requirements as medical examination prior to the burial or cremation of the dead and the creation of a Graves Registration Service.149 It is these minutiae that go beyond the capabilities of many a non-state armed group. Thus, the ICRC had suggested in 1969 that, ‘[g]uerrillas and their opponents should conform to the same rules’ but ‘[t]he more restricted facilities of the former should … be taken into account and general principles established which both Parties could apply’.150
A third option is to use clauses such as those already found in some conventional norms. A number of Additional Protocol II provisions explicitly take into account the capacity of the actor, through reference to ‘all appropriate steps’, ‘within the limits of their capabilities’, ‘to the fullest extent practicable’, ‘all possible measures’, and the References(p. 75) like.151 Generally speaking, there has not been any objection to these provisions,152 nor should there be provided they are interpreted in a sensible manner. Indeed, at the 1974–7 Diplomatic Conference, the ‘apparent tendency to tone down the imperative obligation … by using such phrases as “within the limits of their capabilities”’ was criticized, not because of the move from absolute to relative obligations, but because ‘it was a recognized general principle that no one was compelled to do the impossible’.153
That ‘recognized general principle’ constitutes a fourth option. A provision would be formulated in its usual terms, but there would be general recognition that respect for it would be dependent on the capability of the actor. Along these lines, the 1947 Conference of Government Experts suggested that ‘derogations should be implicitly allowed whenever belligerents plead, in all good faith, inability to meet their obligations’.154 Along associated lines, UN Secretary-General U Thant suggested that:
[a]ppropriate provisions might be envisaged to the effect that the laws and customs of war should be fully applied save in exceptional and compelling circumstances due to lack of facilities … such circumstances might have to be notified to the parties the conflict concerned, which may involve the International Committee of the Red Cross. However, it should be made clear that [other] humanitarian rules or principles … may never be disregarded.155
To allow derogations to be made, be they implicit or notified, goes too far in the opposite direction. They would be incompatible with the protective function of international humanitarian law and the notion of equality of obligation of belligerents. However, the suggestions do usefully illustrate the point being made. It has also been recognized that certain states themselves may have difficulty in applying certain rules to the fullest possible extent. Thus, the Eritrea-Ethiopia Claims Commission has held, in the context of an international armed conflict, that when assessing what was meant by ‘required’ medical care, it was aware that both states had ‘very limited resources’.156
What each of these options has in common is that there has to be a certain ‘shaping’ of the norm. This shaping could take different forms in the context of different rules. For example, insofar as trials are concerned, according to common Article 3, the courts in question have to be ‘regularly constituted’.157 If this is interpreted as requiring legal enactment, the interpretation should not be limited to state law, for that would render the courts of non-state armed groups inherently unlawful. Rather, it should be enough that courts of armed groups are established pursuant to a ‘law’ issued by the armed group. Similarly, due process guarantees should be interpreted in a way that both respects the minimum core—the essence of a fair trial—but is achievable by the armed group. As the Frente Farabundo Martí para la Liberación Nacional (FMLN) argued in 1988 during the conflict in El Salvador: ‘the type of tribunal and law required by References(p. 76) Protocol II have to be adapted to the conditions and capacity of the contending party; the particular mechanisms necessary for defense must be adjusted to the real possibilities of the zone where the trial is held.’158 Such courts and legislation would still be assessed against the standards of international law. However, they cannot be deemed inherently incompatible with the law of armed conflict, for example requiring state courts or standards that can never be satisfied. As has been noted more generally, ‘[t]o require that a group respect a rule that the State makes it impossible to comply with makes a nonsense of the law’.159
Similarly, in the context of internment, this has to take place pursuant to a legal basis, the basis in question usually being domestic legislation. Internment also has to be reviewed by a court or administrative body. Both the legislation and the review mechanism will likely be state legislation and a state court or administrative body insofar as the state party is concerned. For the non-state armed group, it may take the form of state or non-state armed group legislation and a non-state armed group court or administrative body.160 The notions of legislation and of courts have to be interpreted as including the bodies and materials of states and non-state armed groups alike. Any other interpretation renders the relevant law unworkable in practice. Again, this is not to suggest that all non-state armed group legislation or bodies will meet international standards. When judged against the standards of the law of armed conflict, some may be found wanting. However, the law cannot be drafted and interpreted in such a way as to make compliance on the part of the non-state armed group impossible. That does not serve a useful purpose. A balance needs to be found by which the requisite standards are maintained while also making them achievable for the parties to the conflict.
None of this is to suggest that if the law was tailored in the manner suggested there would be a sudden transformation in rates of compliance. Other factors also play crucial roles insofar as compliance is concerned.161 However, the law needs to play its part in encouraging compliance. It should be reiterated that difficulties of capacity only apply in respect of certain norms; others, particularly prohibition-type norms, can be applied irrespective of capacity. It should also be recalled that armed groups have varying capacities. An armed group in effective control over a sizeable portion of state territory and that has established some sort of administration may well be able to comply with all relevant norms.162 Furthermore, problems of capacity are not limited to non-state armed groups; they may also be true of certain states.
It is understandable why the international humanitarian law of international armed conflict formed the reference point for the regulation of non-international armed conflict. It would be more difficult to conjure up new rules than to apply existing rules to a different situation; it may even have proven impossible given the reticence of states. However, it is not immediately apparent that the international humanitarian law of (p. 77) international armed conflict should be the law on which the international humanitarian law of non-international armed conflict is modelled. It is one thing to seek to reach the level of protection that that body of law affords; it is another altogether to model the rules upon it. In particular, the analogy approach has meant that where an appropriate analogy cannot be drawn, such as with the law of belligerent occupation or combatant immunity, the matter has been left largely unregulated.163
The second means by which the international humanitarian law of non-international armed conflict has developed has been through the development of international criminal law relating to war crimes. International criminal law is a useful means by which international humanitarian law may be enforced.164 International criminal law has been utilized to enforce international humanitarian law and to sanction those who commit serious violations of it. Indeed, on one view, international criminal law is the most important means of enforcement of international humanitarian law.165 Using international criminal law to enforce international humanitarian law could also have an impact on other means of enforcement. For example, an ICTY Trial Chamber held that in light of the existence of international criminal law, resort to belligerent reprisals could no longer be justified.166 However, the use of international criminal law in this context has not been limited to the realm of enforcement. There is a far closer, and more complex, relationship between international humanitarian law and international criminal law than simply operation at the level of enforcement.
War crimes law comprises the secondary rules to the primary rules of international humanitarian law.167 Usually, there is relatively little interaction between the primary and the secondary rules, with the rules relating to state responsibility, for example, tending not to affect the content of the primary rules. However, insofar as international criminal law and international humanitarian law are concerned, there is an extremely close relationship between the two. After all, a war crime is essentially a serious violation of international humanitarian law, which entails the individual criminal responsibility of the violator.168 Accordingly, the international criminal tribunals have had to interpret international humanitarian law provisions in order to pronounce on the guilt or innocence of individuals accused of war crimes. Thus, it has been through the lens of war crimes that certain rules of international humanitarian law were first shown to be applicable to non-international armed conflicts. This is true, for example, of the many rules in the area of the conduct of hostilities to which conventional References(p. 78) international humanitarian law of non-international armed conflict remains limited.169 It has also been through the lens of war crimes that existing rules of international humanitarian law applicable to non-international armed conflicts have been fleshed out.170 Historically, war crimes used to refer to the regulation of violations of international humanitarian law rather than their definition; by contrast, today, they are as much about definition as they are regulation.171 These interpretations have provided useful guidance in understanding the relevant rule of international humanitarian law.
Even one of the most fundamental issues, the very definition of a non-international armed conflict, has been aided immeasurably by international criminal law. As will be seen in Chapter 5, for many years, a neat, authoritative definition of a non-international armed conflict proved elusive, with neither common Article 3 nor Additional Protocol II defining the term. The influential ICRC Commentaries on the 1949 Geneva Conventions had the potential to mislead as their ‘convenient criteria’ for the identification of a non-international armed conflict were no more than a collation of the proposals made during the 1949 Diplomatic Conference, all of which were rejected.172 Furthermore, the criteria were suggested at a time during the Diplomatic Conference when the full body of international humanitarian law was considered applicable and not the far fewer rules of common Article 3 alone. Although various definitions had been put forward by commentators and other bodies, none proved sufficiently authoritative. It was only in 1995 with the Tadić Decision on Interlocutory Appeal on Jurisdiction that an authoritative definition was finally encapsulated. Subsequent ICTY jurisprudence has set out indicia that may be utilized in determining whether or not an armed conflict exists.173
Indeed, one of the major achievements of the international criminal tribunals has been the development of international humanitarian law. Just as international human rights law rejuvenated international humanitarian law in the late 1960s and early 1970s, international criminal law reinvigorated international humanitarian law in the mid-1990s and 2000s. Without the jurisprudence of the international criminal tribunals, the law of non-international armed conflict would not be what it is today. Accordingly, it is not an overstatement to suggest that the law of non-international armed conflict cannot be understood without detailed consideration of the jurisprudence of the international criminal tribunals. This will become apparent from the discussion on the substantive norms in Part II.
All that being said, just as there are important differences between international armed conflicts and non-international armed conflicts, so too are there important differences between international humanitarian law and international criminal law. International criminal law relates to ‘the most serious crimes of international concern’,174 and war References(p. 79) crimes give rise to individual criminal responsibility. Thus, the war crime is sometimes drawn up, or interpreted, in a narrower manner than its international humanitarian law equivalent.175 This is unsurprising; in certain instances, it may even be necessary. However, it does mean that care needs to be taken before transposing from international criminal law to international humanitarian law.
In many areas, the law on war crimes acts as a renvoi to international humanitarian law.176 In these instances, there should be little by way of difficulty of application of international criminal law to international humanitarian law. However, the international criminal law standard is not always coterminous with the international humanitarian law standard, as illustrated through the following examples. As noted above,177 the relevant provision of Additional Protocol II on child soldiers provides that, ‘children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities’.178 This stands in contrast with the equivalent war crime as well as the equivalent provisions in the international humanitarian law of international armed conflict and in international human rights law, all of which are narrower.179 The war crime relates to ‘[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’.180 Whereas Additional Protocol II prohibits children from taking any part in hostilities, only an aspect of that prohibition has been criminalized, namely the active participation of children in hostilities. Given that the approach to the list of war crimes in non-international armed conflict in the Rome Statute was to draw not from Additional Protocol II, but the list of war crimes in international armed conflict,181 the criminal prohibition adopts the weaker standard of the law of international armed conflict.
The war crime of the disproportionate attack is also drafted in a narrower manner than the international humanitarian law prohibition. Article 57 of Additional Protocol I prohibits attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.182 This is considered applicable to non-international armed conflict through customary international law.183 The Rome Statute lists as a war crime in international armed conflict such attacks which are ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’.184 The insertion of the words ‘clearly’ and ‘overall’ creates a higher threshold for the war crime as compared with the international References(p. 80) humanitarian law norm.185 Accordingly, future case-law of the ICC on point should not be taken as a reflection of the international humanitarian law standard. Indeed, it may be that that provision is not even reflective of customary international criminal law on point; rather it goes to the delimitation of the crime for the purposes of the ICC alone. It may be that this higher standard is appropriate for the ICC, which ‘does not merely deal with outlawing certain military conduct, but with the criminalization of individual behaviour’.186 On this view, the inclusion of the word ‘clearly’ is needed and at any rate ‘does not entail a significant new hurdle, since prosecution would in any event be viable only in cases where the proportionality requirement was clearly breached’.187 To the extent that that position is correct, it should be catered for within prosecutorial discretion rather than as an element of the offence. A prosecutor may have prosecuted only those instances in which it was clear; now, the prosecutor may seek to prosecute only those instances in which it is abundantly clear. Incorporation of such language shifts the standard utilized. For the purposes of this section, the more pressing concern is that the ‘clearly excessive’ and ‘overall’ standards will be translated from international criminal law back to international humanitarian law to form the requisite standard of the law of non-international armed conflict, altering the balance between military necessity and humanity found in that rule at present.188
A third example relates to forced displacement. The forced displacement of the civilian population, or individual members thereof, is prohibited in international humanitarian law.189 The prohibition covers both deportation, that is to say, ‘the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law’,190 as well as forcible transfer, namely ‘a forced removal or displacement of people from one area to another which may take place within the same national borders’.191 The prohibition on forcible transfer is subject to two exceptions: ‘security of the civilians involved’ and ‘imperative military reasons’.192 The two exceptions do not apply to the prohibition on deportation, which is absolute.193 The prohibition on forced displacement, as criminalized in the Rome Statute, is different. The prohibition on deportation is not separated out from the prohibition on forcible transfer and the two exceptions of the security of the civilians involved and imperative military reasons apply to both.194 This difference should not be translated across to the international humanitarian law arena.
Accordingly, international humanitarian law rules and their associated war crimes are closely related. However, the interpretation of the latter cannot always be taken to References(p. 81) inform the former. If appropriate care is not taken, interpretations of the war crime could end up narrowing the protections afforded by international humanitarian law. There is some suggestion that this concern may be overstated, or at least that the risk has not yet materialized.195 That may be true; however, it is too early for any definite conclusions to be reached. Certainly insofar as the law relating to child soldiers is concerned, there does seem to be a generalized assumption that the prohibition is on active participation in hostilities rather than any participation in hostilities. The broader danger remains that, if states and non-state armed groups realize that they can move beyond the international humanitarian law prohibition to a certain degree without risking prosecution, they will seek to do so, even if such a move constitutes a violation of international humanitarian law.
the evidence before the Trial Chamber fails to demonstrate that any property taken from the detainees in the Čelebići prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims. Accordingly, it is the Trial Chamber’s opinion that the offences, as alleged, cannot be considered to constitute such serious violations of international humanitarian law that they fall within the subject matter jurisdiction of the International Tribunal pursuant to Article 1 of the Statute.196
The use of international criminal law, which provides the secondary rules, to interpret the primary rules of international humanitarian law also represents a departure from the usual order of things. It may give the impression that ‘all behaviour in armed conflict is either a war crime or lawful’.197 It is also an instance of working backwards, looking at the primary rules through a very particular lens.198 Resort to international criminal law in this manner may also have the unintended effect of freezing international humanitarian law. Developments in international humanitarian law may take place only when the ICC has an opportunity to pronounce on the matter, and, given the importance of the nullum crimen sine lege principle, opportunity for development may be limited.199 This too would be a potential unintended impact of international criminal law. The concern should be ameliorated by the provision in the Rome Statute which provides that nothing in the Statute ‘shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’.200 It remains to be seen whether the provision will indeed satisfy these concerns.
References(p. 82) 3.2.2 The enforcement function
Dangers also arise with the enforcement function of international criminal law. If criminal prosecutions are brought for violation of ad hoc agreements that are concluded between the parties to the conflict,201 this may lead to fewer such agreements being concluded. The possibility of criminal prosecution on the basis of ad hoc agreements arose in the Tadić Decision on Interlocutory Appeal on Jurisdiction, in which the Appeals Chamber took the view that ‘a rule of conventional international law’ that was binding on the parties to the conflict at the time of the alleged offence and not in conflict with peremptory norms of international law could form the basis of a criminal prosecution.202 In practice, however, prosecutions have not taken place in respect of violations of agreements themselves. Rather, agreements have been used in different ways, for example, as a means by which to bring into force certain other treaty provisions which would then form the basis of the prosecution, for their normative content, as evidence of the fact that violations of international humanitarian law attracted criminal sanction, and as evidence of the characterization of the armed conflict.203 From the perspective of international humanitarian law, the conclusion of ad hoc agreements is to be encouraged, given that, for example, they may bring into play rules over and above those that are otherwise applicable. Accordingly, it may prove a disservice to prosecute their violation unless a clause on criminal responsibility is included to that effect in the agreement. In the specific case of the 22 May 1992 Agreement to which the Tadić Decision on Interlocutory Appeal was referring, prosecution of its violation was appropriate given that the Agreement provided: ‘[e]ach party undertakes, when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force.’204 However, without a reference of this sort, care should be taken before instituting prosecutions for fear of limiting the conclusion of such agreements in the future.
Ultimately, criminal enforcement of international humanitarian law is immensely useful. However, it is not a cure for all the world’s ills: ‘[t]he success or failure of international humanitarian law must be measured in terms of lives saved and injuries not suffered. It is not measured by the number of prosecutions or the number of convictions.’205 A final concern, then, is that enforcement through criminal law, whether international or national, will eclipse other forms of enforcement.206 This would be problematic given the limited reach of criminal mechanisms; after all, international criminal enforcement ‘hinges on, and depends upon, the goodwill of states’.207 In some respects, the enforcement function of international criminal law may References(p. 83) prove beneficial. If criminal law proved so successful that it could eclipse resort to belligerent reprisals, that would be cause for celebration. However, criminal enforcement should not eclipse other forms of enforcement, such as by third states, the UN, or NGOs. Equally, it should not prevent the creation of new mechanisms of enforcement. These concerns are very real ones. Parties to the conflict may deprive outside entities from engaging with particular individuals or accessing particular areas for fear that they may be called to testify in later war crimes trials.208 Negotiating an ad hoc agreement with a fighter could lead to that fighter being considered aware of the existence of a particular international humanitarian law norm leading to the prosecution of the fighter,209 leading to a decrease in the conclusion of such agreements. To rely exclusively on criminal sanction would be unfortunate, as ultimately ‘[p]rosecution and punishment of those who violate the law cannot be a substitute for preventing violations. Attention needs to shift from repression of those who violate the law to the area of prevention’.210
The third means by which the law of non-international armed conflict has emerged has been through resort to international human rights law. A brief history is in order in this respect.
Today, it is widely accepted that international human rights law applies in situations of armed conflict. This is the view expressed in the principal international humanitarian law instruments. For example, the Preamble to Additional Protocol II recalls that ‘international instruments relating to human rights offer a basic protection to the human person’.211 The Cluster Munitions Convention is even more explicit, referring to the Convention on the Rights of Persons with Disabilities in its preamble, and to human rights law in its provision on victim assistance.212 The principal international human rights law treaties are equally clear. For example, the International Covenant on Civil and Political Rights provides that a state party to the Covenant may derogate from certain of its obligations ‘[i]n time of public emergency which threatens the life of the nation’, a phrase that implicitly includes armed conflict.213 The consequence of this derogation clause is that non-derogable provisions continue to bind the state in times of armed conflict. Certain other human rights treaties, the African Charter on Human and Peoples’ Rights for one, do not contain derogation clauses. In respect of these treaties, no derogation is permitted and the whole host of human rights obligations References(p. 84) remains applicable in time of armed conflict.214 As the ICJ put it: ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights.’215
The view that international human rights law continues to apply in time of armed conflict is also accepted by the vast majority of states, a wide range of international courts and tribunals, and other international law bodies.216 This is the predominant, but not unanimous, view.217 The applicability of international human rights law to situations of non-international armed conflict is also well accepted. Indeed, some go so far as to suggest that its application to non-international armed conflict is even more pertinent than to international armed conflict,218 and its application has been accepted by those otherwise sceptical of the applicability of international human rights law to armed conflicts.219
In previous years, international humanitarian law and international human rights law were kept separate and there was little by way of interaction between the two.220 After all, international humanitarian law and international human rights law are different bodies of law, and to describe international humanitarian law as the human rights law of armed conflict is apt to mislead.221 Thus, the applicability of international human rights law to situations of armed conflict was not always assured. Although the References(p. 85) two bodies of law share some of the same purposes, they have differing origins and remain distinct. These positions are well rehearsed and can be set out in brief.222
First, international human rights law flourished in the immediate aftermath of the Second World War, with the adoption of the Universal Declaration of Human Rights. It has since been followed by the two International Covenants as well as numerous other treaties, declarations, and the like. International humanitarian law’s first flourish took place in the 1860s with the conclusion of the Lieber Code (1863), the 1864 Geneva Convention, and the St Petersburg Declaration on Explosive Projectiles (1868).223 Second, international human rights law largely developed within the UN system while international humanitarian law developed outside that system, primarily through its guardian, the ICRC. The ICRC was wary of associating itself with the—politicized—UN. For its part, the UN, having outlawed the threat or use of force in its Charter, was concerned about considering the law that applies during war lest it be thought that such outlawry was doomed from the outset. Such was the concern that the International Law Commission, tasked by the UN with codifying and progressively developing international law, felt unable to place the revision of the law of armed conflict on its work agenda despite the urgent need for its revision as evidenced by the Second World War.224 Indeed, on one view, the very term ‘international humanitarian law’ has its origins in the reluctance to use the term ‘law of war’ after the conclusion of the UN Charter.225
Third, and most important, whereas international humanitarian law applies as between two or more competing factions engaged in an armed conflict (between states and armed groups or between armed groups), international human rights law regulates the relationship between the state and the individual. International humanitarian law operates on the basis of equality of obligation as between the parties to the conflict;226 the fundamental premise of international human rights law is the unequal relationship between the governor and the governed. Human rights law also presupposes the capacity of an actor to carry out a range of governmental functions, functions which international humanitarian law does not regulate and many non-state parties would be unable to implement.
Fourth, the two bodies of law differ in their approach to the substance of certain norms because of the different realities that each was primarily crafted to regulate. International human rights law prides itself on the right not to be arbitrarily deprived of life, viewing it as the supreme right on which all others are built.227 International humanitarian law accepts the killing of combatants and fighters and tolerates the killing of civilians in certain limited circumstances. International humanitarian law balances References(p. 86) military necessity with the dictates of humanity in situations of armed conflict; international human rights law consists of obligations, principally injunctions, which are binding on states.228
Given these differences, there was little interaction between the two bodies of law in the period immediately after 1945. Some of the most influential instruments of both bodies were adopted at around the same time, the Universal Declaration of Human Rights was adopted in 1948 and the four Geneva Conventions in 1949. Yet few persons participated in the drafting of both sets of instruments and the impact of the one on the other was minimal.229 It took until 1968 and the International Conference on Human Rights in Tehran for the two bodies of law to come into close contact with one another.230 The Conference led to a ‘renaissance’231 of international humanitarian law, which had become stagnant, and provided the ‘impetus’ for the diplomatic conference that led to the Additional Protocols.232 The Tehran Conference and subsequent resolutions also ‘underscored the close relations between human rights law and international humanitarian law; and they gave formal expression to the concern of the United Nations (UN) for international humanitarian law and its obligation to work for respect for international humanitarian law by parties to an armed conflict’.233 Ever since the Tehran Conference, there has been greater interaction between international human rights and humanitarian law.234
With the benefit of hindsight, the mutual influence of the two sets of rules and the close association between the bodies working with them may be considered unsurprising given that they share similar goals, namely respect for, and dignity of, the human person.235 The idea of human dignity is at the very heart of international human rights law, human rights being derived from the ‘inherent dignity of the human person’.236 In international humanitarian law, the impact of human dignity can be seen in such concrete prohibitions as ‘outrages upon personal dignity’, and is infused more broadly throughout that body of law, with the entire body of the law able to be ‘traced back to the obligation to respect human dignity’.237 The Martens clause, for example, a residual clause contained in most humanitarian law instruments, provides that ‘in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience’.238
References(p. 87) 4.2 Application of international human rights law
Far more difficult than the applicability of international human rights law to situations of non-international armed conflict is its actual application therein.239 To introduce human rights into the equation may be to upset the delicate balance between humanity and military necessity that is at play in international humanitarian law. The precise relationship between international human rights law and international humanitarian law is thus still unsettled. International human rights law has been used in situations of non-international armed conflict in a number of different ways, three of which are considered below.
International human rights law has been drawn upon to shape the normative content of the international humanitarian law applicable in non-international armed conflict.240 During the Diplomatic Conference of 1974–7, the Federal Republic of Germany said that ‘[d]raft Protocol II was designed to establish, in all cases, a minimum standard of humanitarian protection in order to safeguard, in time of armed conflict, fundamental human rights on a level in accordance with the international covenants on human rights’.241 Italy also opined that ‘[d]raft Protocol II was closely linked to all the international rules relating to human rights and could contribute to the application of certain ideas which had received increasing support since the adoption’ of the Universal Declaration.242 Thus, the fundamental guarantees clause of Additional Protocol II, which prohibits murder, torture, and the like, and the article on due process guarantees, develop common Article 3 and are inspired by international human rights law.243
It is not just international human rights law that has influenced international humanitarian law; the reverse is also true. The non-derogable provisions of the International Covenant on Civil and Political rights ‘closely resemble the fundamental guarantees codified by humanitarian law treaties’,244 suggesting the influence of the latter on the former. The Convention on the Rights of Persons with Disabilities contains express reference to respect for international humanitarian law,245 while the Convention for the Protection of All Persons from Enforced Disappearance also contains multiple references to international humanitarian law, and certain of its provisions were influenced by international humanitarian law.246 More concretely, the Convention on the Rights of the Child requires states parties to ‘respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child’.247 The Optional Protocol thereto on the Involvement of Children in Armed Conflict, unusually for a human rights instrument, refers to non-state armed groups, References(p. 88) namely that they ‘should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years’.248
One potential downside of referring to humanitarian law ideas in human rights instruments is that the humanitarian law norm may be inserted into a different context, such context impeding the utility of the norm.249 This is exemplified by the aforementioned Optional Protocol to the Convention on the Rights of the Child. Insofar as states are concerned, the Optional Protocol contains a prohibition on using children under the age of 18 years to take a direct part in hostilities and compulsorily recruiting them into their armed forces.250 Children under the age of 18 years can enter into ‘schools operated by or under the control of the armed forces’.251 This should be compared with the prohibition in respect of non-state armed groups which relates to all forms of recruitment and use of children under the age of 18 years.252 This departs from the principle of equality of obligation of the parties to the conflict, so important for international humanitarian law, by which all parties to the armed conflict are treated alike in terms of their substantive obligations.253 Departure from this principle along the lines of the Optional Protocol may prove objectionable to non-state armed groups as it purports to create more onerous standards on them as compared with the states against which they are in conflict. Thus, the National Democratic Front of the Philippines (NDFP), in a 2008 letter to UN Secretary-General Ban Ki-Moon, expressed concern that standards are being imposed upon it ‘that are not even made absolutely applicable to States’.254 Another armed group has questioned why the state against which it is fighting is allowed to recruit children under the age of 18 into its military academy.255
International human rights law has also been used as an interpretational tool, to interpret provisions of international humanitarian law. International human rights law concepts have been used to define similar concepts in international humanitarian law, as was the case with the definition of torture.256 The use of torture is prohibited in international humanitarian law, in respect of both states and non-state armed groups. However, a definition of torture is not to be found in international humanitarian law instruments. Torture is defined in international human rights law, in the References(p. 89) Convention against Torture, and certain ICTY Trial Chambers have held that the Convention against Torture definition could be used to define torture for the purposes of international humanitarian law.257
Resort to international human rights law in this regard can pose certain difficulties. When norms of international human rights law complement those of international humanitarian law, use of the human rights norm is likely rather useful. There may be a lack of precedent in international humanitarian law, or a convergence between the two bodies in terms of ‘goals, values and terminology’.258 However, even at the level of complementary norms, application directly from the one to the other may not be appropriate. Some tailoring of the norm may be needed, for it may be appropriate in one context but inappropriate in another.259 As the ICTY recognized, ‘notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law’,260 for the two bodies diverge in terms of the identity and role of the actors as well as sanctions for their violation.261 Thus, in the specific case of the definition of torture, other ICTY Trial Chambers noted that ‘the definition of an offence is largely a function of the environment in which it develops’ and held that the Convention against Torture definition could only be ‘an interpretational aid’.262
In the majority of situations, a particular norm will exist both in international human rights law as well as in international humanitarian law. In such instances, the precise relationship between the two norms will have to be ascertained. This is usually done on the basis of the lex specialis rule. However, as this term has been understood in different ways,263 it is of greater utility to focus on the operation of the rule rather than on questions of terminology. Two principles serve as a guide to its operation.264 The first principle applies in the event of a conflict of norms. In this situation, the specific rule modifies the general rule to the extent of the inconsistency between them. The general rule does not fall away; it remains in the background and is applicable to the extent that it does not conflict with the specific rule. The second principle applies when the norms are consistent with one another but one norm is of greater specificity than the other or is more tailored to the particular circumstances at hand. In this situation, the more specific rule is but an application of the general rule. Although it may be useful to distinguish between these two principles, a firm distinction is difficult to draw and somewhat artificial. It may also be difficult to ascertain the identity of the References(p. 90) special rule as compared with the general rule. Nonetheless, it is useful to consider the operation of the two principles.
The first principle relates to the modification of the general rule by the specific rule to the extent of any inconsistency between them. A useful example of the operation of this principle relates to the law on internment. International humanitarian law allows for internment in certain situations.265 A regional body of human rights law on the other hand, the European Convention on Human Rights, provides for the right to liberty and security of the person and provides for a certain number of limited exceptions to the right, of which internment is not one.266 Thus, there is a conflict of norms, at least for Council of Europe states, between the rules of international humanitarian law that allow for internment and those of European human rights law that do not. Which of the two constitutes the general rule and which the specific rule thus needs to be identified.
As the rules of international humanitarian law on point were tailored for the specific situation—the Fourth Geneva Convention providing that ‘[t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary’267—the international humanitarian law rules on point constitute the leges speciales. It is those rules that are better tailored to meet the specificities of armed conflicts, with the security concerns that arise in such times and which do not exist to the same extent in times of peace. Likewise, Article 21 of the Third Geneva Convention provides for the internment of prisoners of war, an instance with respect to which human rights law does not specifically legislate. Those provisions accordingly constitute the leges speciales in relation to the more general rules of human rights law on liberty and security of the person.268 This is not to suggest that human rights law on point disappears. Rather, it continues to apply save for the inconsistency. Thus, the right to liberty and security of the person continues to apply in times of armed conflict subject to the exceptions provided for in international humanitarian law.
However, in the Al-Jedda case, the European Court of Human Rights took a different view. It held that, as international humanitarian law does not contain an obligation to intern, providing only for a power to do so, and the European Convention provides for an obligation to respect the liberty and security of the person, a conflict of norms does not arise.269 States may satisfy their obligations under both international humanitarian law and human rights law by not interning persons. While sound as a matter of formal legal argumentation, the approach effectively reads out any power on the part of states to intern persons through international humanitarian law, a far-reaching and controversial proposition.270 Indeed, the Court itself seemed to acknowledge this when it noted that, in its view, internment pursuant to the Fourth Geneva Convention was ‘a measure of last resort’, seemingly leaving open the possibility of internment.271
The second principle relates to the application of the more specific rule as a detailed or tailored version of the general rule. In this situation, a conflict does not exist between References(p. 91) the two rules. Rather, one provision is the more detailed version of the other or the more appropriate in the circumstances. Sometimes, international humanitarian law will offer greater protection, for example in the area of the prohibition of medical experimentation. More pertinent for this chapter, which considers the way in which the law of non-international armed conflict has developed, in part by drawing upon international human rights law, are the instances in which international human rights law offers greater protection than international humanitarian law. An instance in this regard is the prohibition on sentence and execution prior to a fair trial. The International Covenant on Civil and Political Rights provides for a lengthy list of fair trial guarantees.272 For its part, common Article 3 requires the provision of ‘judicial guarantees which are recognized as indispensable by civilized peoples’. A list of the required guarantees is not provided. Additional Protocol II contains such a list but that list is not self-contained, referring as it does to ‘all necessary rights and means of defence’.273 In order to interpret that clause, it becomes necessary to turn to the relevant rules of international human rights law, which form the more specific rules on point. In this situation, a conflict does not exist between the relevant rules of international human rights law and the associated rules of international humanitarian law. One contains a detailed body of regulation; the other, somewhat vague standards. In order to give content to the general rule, resort needs to be had to its more specific counterpart. Precisely how this relationship plays out in the situation of trials is considered in Chapter 8.274
In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus, whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.275
In this instance, the relevant rules of international humanitarian law constituted the leges speciales and so trumped, to the extent of the inconsistency, the equivalent rule found in international human rights law. The ICJ is not suggesting that the body of international humanitarian law as such always constitutes the lex specialis.276 The ICJ was considering one particular right—the right to life—and one particular aspect of that right—its compatibility with the use of nuclear weapons. It does not follow that the entire body of international human rights law is the lex generalis and the full corpus of international humanitarian law the lex specialis. Generalizations cannot be made at References(p. 92) the level of the overarching body; it comes down to an analysis of the individual rule.277 The competing rules have to be identified and the specificity between them ascertained in relation to the particular situation at hand. Should the relevant rule of international human rights law—or, for that matter, any other body of law, such as international environmental law—contain the more specific rule, it would modify the general rule of international humanitarian law to the extent of the inconsistency between them. However, a word of caution is in order in the use of international human rights law or another body of international law in this manner. Absence of a norm in international humanitarian law cannot automatically be filled by a norm present in another body of international law such as international human rights law, as silence cannot always be equated with a gap in protection. Sometimes, the silence may be deliberate.278 Equally, the presumption that the norm that grants greater protection is the more specific norm and can thus be applied by way of the lex specialis rule, while attractive, is not always entirely accurate.279 The precise level of protection to be found in international humanitarian law may have been intended for various reasons.
This second principle is of particular utility when there is a ‘gap’ in international humanitarian law. The existence of a gap also illustrates the care that needs to be taken in filling it. The obligation to investigate certain losses of life is illustrative both of such a gap and the requisite care. Although a duty to investigate losses of life at the hands of state forces does not appear in the text of the principal human rights treaties, it has been read into certain of its provisions. The regional human rights courts, for example, have held that the obligation to protect the right to life coupled with a state’s duty to secure convention rights implies that ‘there should be some form of effective official investigation when individuals have been killed as a result of the use of force’.280 The investigation is required to be prompt, thorough, and effective and should be undertaken by an independent and impartial body.281 An investigation seeks to avoid the creation of a climate of impunity, which so often provides the setting for further violations. It also ‘allows authorities to learn from any mistake and avoid violations in the future’.282 The obligation to investigate does not cease just because the loss of life occurred during a military operation: ‘neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation’.283 Although the European Court of Human Rights has led the way in this regard, other regional bodies have made similar pronouncements and the work of regional institutions has had an important influence on international human rights law. By contrast, the general obligation to investigate all losses of life does not form part of the corpus of References(p. 93) international humanitarian law. In certain specified situations—such as in the case of deaths of prisoners of war,284 or in relation to war crimes285—there is a duty to investigate, but no general duty to investigate all losses of life exists. There are certainly cogent reasons as to why international humanitarian law should contain such a requirement, and of late, there is some authority for the existence of such a general duty in certain situations.286 Indeed, it has been suggested that ‘a bona fide interpretation of IHL must come to the same conclusion—that is, any suspected violation of IHL needs to be properly investigated for the reasons stated by the [human rights] treaty bodies’.287 However, there are also cogent practical reasons why international humanitarian law cannot contain a duty to investigate all losses of life, given the reality of armed conflicts. It would seem, then, that international humanitarian law is moving in this direction but that it is not there just yet. Until such time, international human rights law fills the gap to the extent appropriate.288
More controversially, human rights law has been used directly to regulate non-international armed conflict rather than to inform regulation through international humanitarian law. This ‘human rights law of non-international armed conflict’ is primarily a construct of scholars and has flourished in the literature in recent years.289 Proponents of the idea point to the judgments of the European Court of Human Rights in Isayeva and Isayeva, Yusupova and Bazayeva for support.290 Whether the European Court considered the situation in the two Isayeva cases to be a non-international armed conflict or, rather, a state of internal tensions and disturbances is unclear. It is equally unclear whether the Court was implicitly applying international humanitarian law or, rather, applying human rights law, given the lack of explicit pronouncement on point and the contradictory indications within the judgment. For example, while the European Court used the language of international humanitarian law, speaking of ‘legitimate targets’, ‘disproportionality in the weapons used’, and ‘illegal armed insurgency’,291 it also referred to ‘law-enforcement’ and being ‘outside wartime’.292 Furthermore, on occasion, the European Court of Human Rights has considered, and applied, issues of international humanitarian law, namely the notion of direct participation in hostilities and the law of surrender in the context of alleged violations of the European Convention.293 Nevertheless, the predominant view is that References(p. 94) the European Court was directly applying human rights law in these cases to regulate a non-international armed conflict,294 a suggestion which is strengthened by a Separate Opinion in a related case.295 Furthermore, in a later case, the Grand Chamber of the European Court stated that Article 2 of the European Convention ‘must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict’.296 On this view, it is human rights law that directly regulates the situation, albeit as interpreted by international humanitarian law.
The ‘human rights law of non-international armed conflict’ approach can be usefully broken down into two schools of thought. The ‘unification’ school takes the view that there should be a unified body of law applicable in situations of peace and non-international armed conflict, regardless of the intensity of that conflict.297 The ‘threshold’ school seeks to split up the law of non-international armed conflict depending on the intensity of the violence. A non-international armed conflict of a low intensity would be regulated by international human rights law; a high-intensity non-international armed conflict would be governed by international humanitarian law; the separating threshold would be that of Additional Protocol II.298 Both schools are premised on common ideas, namely that there is little by way of international humanitarian law that regulates non-international armed conflict,299 that international humanitarian law suffers from a lack of specificity,300 that states rarely accept that an armed conflict is taking place thus denying the very applicability of international humanitarian law,301 and that the relationships inherent in a non-international armed conflict can be considered akin to those present in human rights law.302
The use of international human rights law in this manner is of a different order to the other uses considered above. Rather than utilizing human rights law to influence or interpret international humanitarian law, human rights law is being posited as a means of directly regulating non-international armed conflict. This would be a fundamental shift in the regulation of non-international armed conflict.303
References(p. 95) There is, however, a fundamental difference between international human rights law and international humanitarian law that makes the direct regulation of non-international armed conflict by international human rights law rather difficult. The difference is the principle of equality of obligation of belligerents. That principle is fundamental to international humanitarian law,304 including the international humanitarian law of non-international armed conflict.305 The principle holds that all parties to an armed conflict have the same rights and obligations as a matter of law, irrespective of the ‘justness’ of the cause; the idea being that if one side is not bound by particular rules, the side that is bound will not comply with them. Given that, traditionally, international human rights law governs the relationship between the state and the individual, with the individual considered the beneficiary of the right and the state the guarantor of the obligation, international human rights law does not contain an idea corresponding to that of equality of belligerents. As the Kunarac Trial Chamber observed, ‘international humanitarian law purports to apply equally to and expressly bind all parties to the armed conflict whereas, in contrast, human rights law generally applies to only one party, namely the state involved, and its agents’.306 Difficulties arise, then, in the regulation of non-international armed conflict directly through international human rights law. If international human rights law is not binding on the non-state armed group, then regulation through human rights law would be inappropriate as it would be binding on only one of the parties to the conflict, with the other side being left unregulated by human rights law; in a conflict between armed groups, neither side would be regulated through human rights law.
The traditional view of human rights law was that it was binding on the state alone and not the non-state armed group. In recent years, there has been suggestion that, in certain situations, non-state armed groups may have human rights obligations.307 A number of theoretical bases have been put forward to explain how and why non-state armed groups may be bound by international human rights law: (1) equality of obligation—if one party is bound by an obligation, so too must the other side be bound;308 (2) as intrinsic principles, whether expressed as a ‘demand of the international community’,309 as ‘one of the great principles of international law’ observable in ‘borderline situations outside the normal configurations of inter-State relationships’,310 or as an ‘integral part of [the] international order for the maintenance and reestablishment References(p. 96) of peace and security’;311 (3) obligations as the correlative of rights312—if non-state armed groups benefit from human rights, they must also be subject to obligations; and (4) through effective control over territory.313 This latter explanation has attracted the most support and represents, by some margin, the predominant view to date.314 It is sometimes expressed as an expectation of the international community,315 while at other times as a binding legal obligation on the part of the non-state armed group.316 To these theoretical bases may be added, rather more simply, holding non-state armed groups to their commitments. Non-state armed groups issue unilateral declarations, draw up charters, conclude bilateral agreements, and the like, on human rights matters. There is a fair amount of practice on point, from states and non-state armed groups themselves,317 and these can be considered binding on the non-state armed group, an issue that is discussed in Chapter 4.318
By and large, the view that non-state armed groups have human rights obligations has been expressed by UN bodies and truth commissions. This should come as no surprise for it is often at this level that novel concepts are first introduced before later being accepted by states. In addition, states themselves have sometimes taken the position that non-state armed groups are bound by human rights obligations. For example, Guatemala argued before the Guatemalan Commission for Historical Clarification that ‘it was unacceptable to appraise the conduct of their security forces by (p. 97) stricter standards than the conduct of the guerrilla forces’.319 Similarly, the Armed Forces of the Philippines are reported to have ‘regularly lodge[d] complaints about human rights violations by the rebel forces with the independent Human Rights Commission’.320 More prevalent are bilateral agreements between a state and an opposing non-state armed group in which the agreement reconfirms that both parties have human rights obligations. Given that states are one of the parties to these agreements, they may be considered to be assenting to the idea of human rights obligations on the part of certain non-state armed groups. The practice on point is considered in Chapter 4.321 At this stage, it suffices to note that, on the basis of this practice, a number of states—at the very least El Salvador, Guatemala, Liberia, Nepal, Papua New Guinea, the Philippines, Sierra Leone, and Sudan—can be considered to have taken the view that certain non-state armed groups do indeed have obligations under international human rights law, at least when the conflict has been taking place for a certain duration and reached a certain intensity.
The lack of equality of obligation in international human rights law is not, then, an insurmountable obstacle to regulation through international human rights law. There is a fair amount of practice to suggest that, at least in certain limited situations, armed groups have obligations pursuant to international human rights law. More problematic is the fact that the method by which international human rights law binds non-state armed groups may not fit with the situations in which human rights law purports to regulate non-international armed conflict. As indicated above, the most accepted means by which human rights law is considered binding on non-state armed groups is through territorial control. When armed groups are in effective control over a certain quantum of territory, human rights obligations are considered to attach to them. Below this threshold, armed groups may not be under an obligation to comply with human rights obligations. Yet, human rights law purports to regulate non-international armed conflict in precisely the reverse situation, either below the level of an Additional Protocol II armed conflict, when the non-state armed group does not exercise territorial control, or in all situations.322 Without consideration of the differences between international human rights law and international humanitarian law, application of the former may defeat the purpose for which it is intended to be used, or make it less useful than would be the case were it tailored to fit the particularities of the situation.
In relation to the suggestion that international humanitarian law would apply in an Additional Protocol II conflict and international human rights law in a conflict below the level of Additional Protocol II,323 as will be seen in Chapter 5, the difference between the two sorts of conflict is not at all large. In particular, vast amounts of territory need not be controlled by the armed group in order to trigger Additional Protocol II. Rather, what is required is that the armed group exercise such territorial control as to enable it to carry out sustained and concerted military operations and to implement the Protocol.324 Furthermore, in situations in which the armed group exercises control over large swathes of a state’s territory, international human rights law may be better placed to regulate the situation in addition to international humanitarian law. In order for armed groups to control territory at that level, the conflict has References(p. 98) usually reached a stage at which, while fighting continues, a certain ‘peace’ exists in parts of the territory. The situation in a large part of the territory under the control of the armed group will thus be normalized to a certain degree. In that situation, international humanitarian law will continue to regulate the relations between the parties to the armed conflict, whereas international human rights law will, at least on a de facto basis, govern the way in which the non-state armed group treats persons under its control. The LTTE control of the north and east of Sri Lanka in the late 1990s and early 2000s, the Fuerzas Armadas Revolucionarias de Colombia (FARC) control of a sizeable part of Colombia following the 1998 cession of territory by the Government, and the SPLM control over south Sudan in the 2000s, are but three examples of this relatively ‘normalized’ situation. Fighting continued in all three states; however, there was also a largely normalized, albeit abnormal, situation in tracts of the territory under the LTTE, FARC, and SPLM control. In sum, the Additional Protocol II standard is not the appropriate one by which to divide human rights law from international humanitarian law as the applicable law.
Furthermore, it is not immediately apparent why international human rights law should directly regulate non-international armed conflict. Direct regulation of non-international armed conflict through international human rights law is premised on the idea that there is a lack of content and specificity on the part of international humanitarian law.325 This explains why international human rights law is suggested to regulate non-international armed conflicts but not international armed conflicts.326 However, this premise is open to challenge. As will be seen in Part II, there is a substantial body of law that regulates non-international armed conflicts. Although the applicability of some of the rules may be open to question, the vast majority of them have been accepted by states. The need for regulation through international human rights law is often suggested for the law of targeting in particular.327 Yet, this is an area in which international humanitarian law offers detailed rules. The situation is often described as if it was 1977 and Additional Protocol II had just been concluded with its minimal rules on the means and methods of warfare.328 Yet, there is customary international humanitarian law on point, and even if the Customary International Humanitarian Law study may be faulted, it cannot be criticized for holding that the principal rules on targeting apply to non-international armed conflict. This is a position that has been recognized by courts and tribunals, influential bodies, and, most importantly, states and non-state armed groups, in many cases years before the study was concluded.329 Furthermore, it would be difficult, if not impossible, to fight an armed conflict exclusively under an international human rights law paradigm. This is not to suggest References(p. 99) that international human rights law has nothing to offer. As this section has shown, it may be helpful in a number of different ways. However, there should not be a rush to judgement that international human rights law holds the answer to all the problems.
The period since the mid-1990s has witnessed a wholesale transformation in the regulation of non-international armed conflict. Prior to the mid-1990s, there existed relatively little by way of applicable conventional and customary international law. Today there exists a substantial body of international law—conventional and customary alike—that governs non-international armed conflicts. This body has developed along three principal lines. First, the international humanitarian law of non-international armed conflict has been modelled on, and assimilated to, the international humanitarian law of international armed conflict. The international humanitarian law of international armed conflict is considered the high watermark of legal regulation, the pinnacle to which the international humanitarian law of non-international armed conflict should aspire. Second, the law of non-international armed conflict has been elaborated through international criminal law, which has filled in some of its substantive content. Third, it has drawn on international human rights law. The impact of these three approaches is that, today, international criminal law and international human rights law have become inextricably linked with international humanitarian law in the regulation of non-international armed conflict. Together, these three approaches have led to the creation of a ‘law of non-international armed conflict’.
The law developed along these three lines primarily because of the resistance of states to the direct regulation of non-international armed conflict through international humanitarian law. Thus, it was only through these creative means that the law could be developed. States have been far less reluctant to regulate the conduct of international armed conflict; thus, historically, that branch of law has been more advanced than its non-international counterpart. In light of the criticism of the international/non-international armed conflict distinction and the advantages of a uniform body of international humanitarian law, modelling on the law of international armed conflict made considerable sense. Likewise, in the period between 1949 and the mid-1990s, the development of international human rights law gained far greater traction than did the international humanitarian law of non-international armed conflict. Given the similarities between international human rights law and the ‘Geneva’ aspects of international humanitarian law, and the existence of working enforcement mechanisms, international human rights law proved attractive in the regulation of non-international armed conflict. The huge growth of international criminal law since the mid-1990s, coupled with the close relationship between international criminal law and international humanitarian law, meant that that body, too, proved useful in regulating non-international armed conflict.
However, each of these approaches suffers from certain limitations and gives rise to certain difficulties. This is due, primarily, to the existing focus on the similarities between international armed conflicts and non-international armed conflicts, and between international humanitarian law on the one side and international criminal law and international human rights law on the other. Insufficient attention has been paid to the differences between each of them. The primary difference between an international and a non-international armed conflict is the actors that take part in them. The difference is obvious, yet the implications of this difference (p. 100) have not been followed through. The differing actors involved in the two types of armed conflict suggest that, at the very least, certain legal norms cannot be transposed directly from the international armed conflict to the non-international armed conflict without some modification. Translation and not transplantation is in order.
The differences between international humanitarian law on the one hand and international criminal law and international human rights law on the other also pose certain difficulties. International criminal law gives rise to individual criminal responsibility and, accordingly, certain provisions of war crimes law are interpreted in a narrower fashion than their international humanitarian law counterparts. If care is not taken, this narrower reading of a war crime will replace the broader interpretation of the international humanitarian law rule. Complexities also arise in the use of international human rights law. International human rights law was originally designed to govern the state–individual relationship, with the state the bearer of the obligation and the individual the possessor of the right. If international human rights law is to be applied directly in situations of non-international armed conflict, this vertical relationship will require re-thinking.
These differences do not suggest that the existing approaches of regulation by analogy and resort to other bodies of international law have been misplaced, nor do they call for a wholesale transformation of the applicable law. They do, however, require a certain care to be taken before moving from the one to the other. They also require analysis in order to identify whether there are gaps in need of regulation. Resort would also be had to other areas of the law which may inform the situation. More generally, understanding of the workings of non-state armed groups would be developed and greater regard would be had to the practice of non-international armed conflicts in order to establish whether or not a particular rule ‘worked’. All this is considered, as appropriate, in Part II on the substantive law of non-international armed conflict and in Part III on moving forward.
1 See Chapter 4.
2 See Chapter 2.
3 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America)  ICJ Rep 14, para 218. The Court had spoken in 1949 of ‘elementary considerations of humanity, even more exacting in peace than in war’; however, the precise content of those considerations were not then identified. See Corfu Channel (United Kingdom v Albania)  ICJ Rep 4, 22.
4 See eg the Dissenting Opinion of Judge Jennings in Nicaragua, above note 3, 537–8; T Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press, 1989) 36; PH Kooijmans, ‘In the Shadowland between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process’, in AJM Delissen and GJ Tanja (eds), Humanitarian Law of Armed Conflict, Challenges Ahead: Essays in Honour of Frits Kalshoven (Martinus Nijhoff, 1991) 225, 229.
5 On GA Res 2444 (XXIII) (1968), see eg the United States, excerpted in (1973) 67 AJIL 122; Prosecutor v Tadić, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras 110–12. On GA Res 2675 (XXV) (1970), see eg Denmark, Third Committee, General Assembly, 25th Session, 1785th Meeting, 11 November 1970, (1970) UNGA Official Records (Third Committee) 281; Tadić Decision on Interlocutory Appeal on Jurisdiction, paras 110–12. The United Kingdom considers GA Res 2675 (XXV) to be ‘evidence of state practice’: UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) 391.
7 Cf Meron, Human Rights and Humanitarian Norms, above note 4, 72 fn 199; A 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, 112–13; C Greenwood, ‘Customary Law Status of the 1977 Geneva Protocols’, in AJM Delissen and GJ Tanja (eds), Humanitarian Law of Armed Conflict Challenges Ahead: Essays in Honour of Frits Kalshoven (Martinus Nijhoff, 1991) 93, 113. See also, setting out the position of the United States, ‘The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions: Remarks of Michael J Matheson’ (1987) 2 American University Journal of International Law and Policy 419.
8 See A Cassese, ‘The Spanish Civil War and the Development of Customary Law concerning Internal Armed Conflict’, in A Cassese (ed), Current Problems in International Law: Essays on UN Law and the Law of Armed Conflict (Giuffré, 1975) 287–8. See also T Hoffman, ‘The Gentle Humanizer of Humanitarian Law—Antonio Cassese and the Creation of the Customary Law of Non-International Armed Conflict’, in C Stahn and L van den Herik (eds), Future Perspectives on International Criminal Justice (TMC Asser Press, 2010) 58, 58–63.
10 J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law: Volumes I and II (Cambridge University Press, 2005). The study, conducted pursuant to a mandate from the 1995 International Conference of the Red Cross and Red Crescent, took nearly 10 years to conclude and involved some 150 experts. See Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva (23–27 January 1995), Recommendation II, reproduced in (1995) 77 IRRC 33, 34; J-M Henckaerts, ‘Customary International Humanitarian Law: A Response to US Comments’ (2007) 89 IRRC 473, 474.
12 Statute of the ICTR, Article 4, annexed to SC Res 955 (1994). See Report of the Secretary-General pursuant to Paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, 13 February 1995, paras 11–12.
14 Ibid, para 119 (emphasis added). Not everyone agreed with this position. For contemporaneous reactions, see eg C Greenwood, ‘International Humanitarian Law and the Tadić Case’ (1996) 7 EJIL 265, 278; GR Watson, ‘The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v Tadić’ (1995–6) 36 Virginia Journal of International Law 687, 713–15; C Warbrick and P Rowe, ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadić Case’ (1996) 45 ICLQ 691, 701.
18 See Nicaragua, above note 3, para 218.
21 Galić, Trial Judgment, above note 19, para 58.
22 Prosecutor v Hadžihasanović and Kubura, IT-01-47-T, Decision on Motions for Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 27 September 2004, para 98; Prosecutor v Strugar, IT-01-42-T, Judgment, 31 January 2005, para 225.
23 Prosecutor v Hadžihasanović and Kubura, IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, 11 March 2005, paras 29–30; Strugar, Trial Judgment, para 228.
25 See above, 51.
26 On the debate, see Chapter 2.
28 Prosecutor v Martić, IT-95-11-R61, Decision, 8 March 1996, para 11. See S Boelaert-Suominen, ‘The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts’ (2000) 13 LJIL 619.
29 For a statement as to its approach, see Customary International Humanitarian Law, Volume I: Rules, above note 10, xxxi.
30 See ibid, Volume II: Practice.
31 Ibid, Volume I: Rules.
32 Ibid, xxix.
33 Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc.9 rev.1, 26 February 1999, Chapter IV, para 44. See also L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2002) 79–81.
34 See eg Second Report of the United Nations Observer Mission in El Salvador, A/46/658-S/23222, 15 November 1991, para 69 fn 18; Third Report of the United Nations Observer Mission in El Salvador, A/46/876-S/23580, 19 February 1992, para 131; Zegveld, Armed Opposition Groups, above note 33, 78–9.
35 The analogy in question was the use of neutral relief aircraft contained in Article 18 of the 1929 Convention. See Letter of ICRC Delegate Dunand to the Vice-President of the ICRC, 15 June 1947, ICRC Archives CR 22(43)/34.
40 See eg Hadžihasanović, ibid, paras 47–8.
41 See eg ibid, paras 37–8.
42 Tadić Decision on Interlocutory Appeal on Jurisdiction, above note 5, paras 120–4.
44 But see A Zahar, ‘Civilizing Civil War: Writing Morality as Law at the ICTY’, in B Swart, A Zahar, and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the former Yugoslavia (Oxford University Press, 2011) 469.
45 C Kress, ‘War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’ (2000) 30 IYHR 104, 107. See also AM Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’ (2006) 59 Vanderbilt Law Review 1.
46 See eg R Cryer, Prosecuting International Crimes (Cambridge University Press, 2005) 283; A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 144, 152–3; Kress, War Crimes, above note 45, 134–6.
47 The ‘four Tadić conditions’ are set out in Tadić Decision on Interlocutory Appeal on Jurisdiction, above note 5, para 94. For criticism of the fourth Tadić condition, see eg G Mettraux, International Crimes and the ad hoc Tribunals (Oxford University Press, 2005) 51–2; Greenwood, Tadić, above note 14, 279–80. For criticism of the application of the fourth Tadić condition to particular rules, see eg Prosecutor v Galić, IT-98-29-A, Judgment, 30 November 2006, Separate and Partially Dissenting Opinion of Judge Schomburg, paras 4–22.
49 Customary International Humanitarian Law, Volume I: Rules, above note 10.
50 See eg the criticism of the United States relating to the application to internal armed conflict of Rules 31, 45 and 78 of the Customary International Humanitarian Law Study: JB Bellinger III and WJ Haynes II, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’ (2007) 89 IRRC 443. See also eg GH Aldrich, ‘Customary International Humanitarian Law—An Interpretation on Behalf of the International Committee of the Red Cross’ (2005) LXXVI BYIL 503; Y Dinstein, ‘The ICRC Customary International Humanitarian Law Study’ (2006) 36 IYHR 1; the symposium in (2006) 11 JCSL 163–291; E Wilmshurst and S Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press, 2007).
51 See eg Aldrich, Customary International Humanitarian Law, above note 50, 523; Dinstein, Customary International Humanitarian Law, above note 50, 1; E Newalsing, ‘Book Review’: Jean-Marie Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law’ (2008) 21 LJIL 255, 277.
52 See eg Hadžihasanović Decision on Interlocutory Appeal of Rule 98bis Decision, above note 23; Hamdan v Rumsfeld (2006) 126 S Ct 2749, 2797; Public Committee Against Torture in Israel v Government of Israel HCJ 769/02.
53 See generally Chapter 4.
54 A Gioia, ‘The Chemical Weapons Convention and its Application in Time of Armed Conflict’, in M Bothe, N Ronzitti, and A Rosas (eds), The New Chemical Weapons Convention—Implementation and Prospects (Kluwer Law International, 1998) 397, 381–3; WH Boothby, Weapons and the Law of Armed Conflict (Oxford University Press, 2009) 321.
55 On the Ottawa Convention, see Article 1; S Maslen, Commentaries on Arms Control Treaties: Volume I (Oxford University Press, 2005) 74–7; Boothby, Weapons, above note 54, 322. On the Cluster Munitions Convention, see Article 1; K Hulme, ‘The 2008 Cluster Munitions Convention: Stepping Outside the CCW Framework (Again)’ (2009) 58 ICLQ 219, 221–2.
59 CCW/CONF.I/SR.2 (1996) 4 para 16, in ‘Review Conference of the States Parties to the Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, Final Document, Part II’, CCW/CONF.I/16 (Part II). See MJ Matheson, ‘The Revision of the Mines Protocol’ (1997) 91 AJIL 158, 159; JH McCall Jr, ‘Infernal Machines and Hidden Death: International Law and Limits on the Indiscriminate Use of Land Mine Warfare’ (1994–5) 24 Georgia Journal of International and Comparative Law 229, 264.
62 See generally ‘Second Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects’, CCW/CONF.II/2.
63 The amendment entered into force on 18 May 2004. For the view that Protocol IV is applicable to non-international armed conflict even outside ratification of the amendment, see L Doswald-Beck, ‘New Protocol on Blinding Laser Weapons’ (1996) 36 IRRC 272.
65 Resolution of Ratification, para 3(c)(3), 141 Congressional Record S4568, S4569 (24 March 1995), cited in Matheson, Mines Protocol, above note 59, 160.
67 M Bothe, ‘War Crimes’, in A Cassese, P Gaeta, and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 379, 417–18; A Zimmermann, ‘Preliminary Remarks on para 2(c)–(f) and para 3: War crimes committed in an armed conflict not of an international character’, in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Beck, 2008) 475, 476–7; H von Hebel and D Robinson, ‘Crimes within the Jurisdiction of the Court’, in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Kluwer Law International, 1999) 79, 119.
68 Res ICC-ASP/8/Res.6, Annex III: Belgium: Proposal of Amendment, 26 November 2009. The proposal was supported by Austria, Argentina, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia, and Switzerland.
70 On the various positions, see below, 376–7.
71 F Kalshoven, ‘The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session), 3 May–2 June, 1972’ (1972) 3 NYIL 18, 55.
72 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (Federal Political Department, 1978) Vol 5, 142 para 7 (Sweden). See also Vol 11, 209 para 42 (Australia); Vol 11, 208 para 39 (FRG).
73 Ibid, Vol 11, 249 para 21 (Norway). See also Vol 5, 186 para 15 (Finland).
74 Ibid, Vol 14, 67 para 72 (United States); Vol 8, 221 para 33 (Romania); Vol 11, 248 para 18 (Indonesia).
75 Ibid, Vol 5, 184 para 6 (Canada).
76 See the table in M Bothe, KJ Partsch, and WA Solf, New Rules for Victims of Armed Conflicts (Martinus Nijhoff, 1982) 641. See above, 49–52.
77 See Chapter 2.
78 Customary International Humanitarian Law, Volume I: Rules, above note 10, xxix. See also W Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 EJIL 741, 742.
79 See, to varying degrees: J Stewart, ‘Toward a Single Definition of Armed Conflict in International Humanitarian law: A Critique of Internationalized Armed Conflict’ (2003) 85 IRRC 313; L Moir, ‘Towards the Unification of International Humanitarian Law?’, in R Burchill, ND White, and J Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press, 2005) 108; A Duxbury, ‘Drawing Lines in the Sand—Characterising Conflicts for the Purposes of Teaching International Humanitarian Law’ (2007) 8 Melbourne Journal of International Law 259, 266–8; E Crawford, ‘Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 LJIL 441.
82 See eg Official Records, above note 72, Vol 11, 248 para 17 (Indonesia); Vol 11, 249 para 19 (Denmark).
85 See eg ibid, Vol 11, 248 para 17 (Indonesia); Vol 11, 249 para 19 (Denmark); Vol 8, 210 para 42 (France). See also Conference of Government Experts [Second Session], above note 81, 64.
86 see below, 185–7.
91 See, for further detail, below, 192–5.
93 Official Records, above note 82, Vol 8, 236 para 37. See also T Meron, Human Rights in Internal Strife: Their International Protection (Grotius, 1987) 152.
94 see below, 70–1.
95 see below, 72–6.
96 see below, 164–80.
98 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session, 3 May–3 June 1972): Report on the Work of the Conference, Volume I (July 1972) 64 para 2.25.
99 see below, 72–3.
105 see below, 286.
108 Article 15. See the military manuals of Argentina, Canada, and Netherlands, quoted in Customary International Humanitarian Law, Volume II: Practice, above note 10, 814–40.
109 See the reservations of France and the United Kingdom, in Schindler and Toman, above note 66, 801 and 817.
110 See further, below, 381–3.
111 Final Record, above note 15, Vol II-B, 326.
112 Official Records, above note 72, Vol 8, 221 para 33.
115 Zahar, Civil War, above note 44, 467, 500.
116 Ibid, 502.
117 Official Records, above note 72, Vol 8, 325 para 11 (FRG); Vol 14, 177 para 41 (United Kingdom). See also Vol 11, 561 paras 73–6 (Canada, on behalf of the Working Group).
122 Steering Committee for Human Rights, Study on Human Rights Protection during Situations of Armed Conflict, Internal Disturbances and Tensions, DH-DEV(2002)1, 18 March 2001 (Document prepared by F Hampson) para 32.
124 However, difficulties still arise. See further below, 401–3.
126 Official Records, above note 72, Vol 7, 61 para 11 (Pakistan); Vol 8, 309 para 55 (India); Vol 8, 337 para 71 (Canada); Vol 8, 339–40 para 82 (Iran); Vol 8, 340 para 87 (India); Vol 8, 345 para 18 (Italy).
128 B Jakovlević and J Patrnogić, ‘The Urgent Need to Apply the Rule of Humanitarian Law to so-called Internal Armed Conflicts’ (1961) 1 IRRC 250, 256–7. See also, in the context of national liberation movements, RR Baxter, ‘The Geneva Conventions of 1949 and Wars of National Liberation’, in MC Bassiouni (ed), International Terrorism and Political Crimes (Thomas, 1975) 121, 125.
129 Zegveld, Armed Opposition Groups, above note 33, 34.
131 Ibid, 29.
133 Letter from Chef de la Représentation Permanente du FLN du Sud-Vietnam en URSS to Representative of the ICRC, 16 October 1965, ICRC Archives B AG 202 223–005 (Russian original and French translation). The original reads: ‘[c]es Conventions contiennent des articles qui ne correspondent absolument pas à notre action, ni à l’organisation des forces armées du FNL, et c’est pourquoi le FNL ne peut pas appliquer mécaniquement cette Convention.’
136 Official Records, above note 72, Vol 8, 32 para 46 and 36 para 18.
137 For example, the LTTE’s political wing was based in London; the Front de Libération Nationale (FLN) of Algeria had an office in New York; the Frente Farabundo Martí para la Liberación Nacional (FMLN) of El Salvador had a Secretariat for the Promotion and Protection of Human Rights; the Sudan People’s Liberation Movement (SPLM) had a relief wing.
138 Tadić Decision on Interlocutory Appeal on Jurisdiction, above note 5, para 119.
139 Ibid, para 126.
141 Ibid, Article 5(2) (emphasis added).
142 Final Record, above note 15, Vol II-B, 326 (USSR).
145 Part III.
151 Additional Protocol II, Article 4(3)(b) (‘all appropriate steps shall be taken’); Article 5(2) (‘within the limits of their capabilities’); Article 7(2) (‘to the fullest extent practicable’); Article 8 (‘all possible measures’); Article 17 (‘all possible measures’).
152 On the contrary. See eg Official Records, above note 72, Vol 8, 337 para 71 (Canada); Vol 8, 339–40 para 82 (Iran).
154 Remarks and Proposals submitted by the International Commission of the Red Cross: Document for the Consideration of Governments invited by the Swiss Federal Council to attend the Diplomatic Conference at Geneva (April 21, 1949) (1949) 37–8.
158 FMLN, The Legitimacy of Our Methods of Struggle (Inkworks Press, 1988) 20. See generally below, 549–62.
159 F Hampson, ‘Fundamental Guarantees’, in E Wilmshurst and SC Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian law (Cambridge University Press, 2007) 282, 287 fn 20.
160 see below, 303–4.
162 Final Record, above note 15, Vol II-B, 13 (Canada); ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3 May–3 June 1972 (second session): II Commentary, Part Two (January 1972) 84–6.
163 See S Sivakumaran, ‘Re-envisioning the International Law of Internal Armed Conflict’ (2011) 22 EJIL 219. See further Chapter 12.
164 See Chapter 11.
167 Bothe, War Crimes, above note 67, 381.
168 See Tadić Decision on Interlocutory Appeal on Jurisdiction, above note 5, para 94. See generally G Abi-Saab, ‘The Concept of “War Crimes”’, in S Yee and W Tieya (eds), International Law and the Post-Cold War World: Essays in Honour of Li Haopei (Routledge, 2001) 99, 112. see below, 475–8.
169 See Chapter 9.
170 See eg above, 57–8.
172 A former ICRC Director for International Law and Cooperation has also taken the view that the ICRC Commentaries on this point (as well as certain other points) ‘must be viewed with serious reservations’. F Bugnion, The International Committee of the Red Cross and the Protection of War Victims (ICRC, 2003) 344.
173 see below, 164.
177 See above, 68.
181 See above, 63.
183 See eg Hadžihasanović Trial Judgment, above note 20, para 45; Customary International Humanitarian Law, Rule 14.
185 von Hebel and Robinson, Crimes, above note 67, 79, 111; R Arnold, ‘War Crimes—para. 2(b)(iv)’, in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Beck, 2008) 338, 339.
199 Sassòli, Humanitarian Law, above note 171, 117.
203 See Hadžihasanović Decision on Interlocutory Appeal of Rule 98bis Decision, above note 23, para 28 fn 51; Tadić Decision on Interlocutory Appeal on Jurisdiction, above note 5, paras 73 and 136. See generally L Vierucci, ‘“Special Agreements” between Conflicting Parties in the Case-law of the ICTY’, in B Swart, A Zahar, and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the former Yugoslavia (Oxford University Press, 2011) 401.
206 Sassòli, Humanitarian Law, above note 171, 117–19.
207 Cassese, Current Trends, above note 165, 4 (emphasis removed).
208 Sassòli, Humanitarian Law, above note 171, 117–18.
209 A Clapham, ‘The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape and Issues Surrounding Engagement’, Ownership of Norms Project—Toward a Better Protection of Civilians in Armed Conflicts, February 2010, 36.
213 International Covenant on Civil and Political Rights, Article 4. The European Convention of Human Rights, Article 15 and the African Charter on Human and Peoples Rights, Article 27 specifically mention ‘war’.
214 African Commission on Human and Peoples’ Rights, Commission Nationale des Droits de l’Homme et des Libertés v Chad, No 74/92, 9th Annual Activity Report 1995–6, para 21; African Commission on Human and People’s Rights, Communications 279/03—Sudan Human Rights Organization and The Sudan, 296/05—Centre of Housing Rights and Evictions/The Sudan, 45th Ordinary Session, 13–27 May 2009, para 167.
215 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion  ICJ Rep 136, para 106. See also Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)  ICJ Rep 168, para 216; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion  ICJ Rep 226, para 25 (on the ICCPR).
216 See eg Nuclear Weapons, above note 215, 226, para 25; Wall, above note 215, 136, para 106; Armed Activities on the Territory of the Congo, above note 215, para 216; Commission Nationale des Droits de l’Homme et des Libertés v Chad, above note 214, para 21; Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006, para 104; Human Rights Committee, General Comment No 31, ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add.13, 2004, para 11. See also the various views expressed in the written and oral pleadings in the Nuclear Weapons and Wall advisory opinions.
217 For the opposing view, see Response of the United States to Request for Precautionary Measures—Detainees in Guantanamo Bay, Cuba, 15 April 2002 (2002) 41 ILM 1015; MJ Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 AJIL 119; B Bowring, ‘Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the European Court of Human Rights’ (2009) 14 JCSL 485.
218 Abresch, Human Rights Law of Internal Armed Conflict, above note 78, 746–50; H Krieger, ‘A Conflict of Norms: The Relationship between Humanitarian law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 JCSL 265, 273–5; C Droege, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 IRRC 501, 527; K Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 AJIL 1, 25–7.
219 GIAD Draper, ‘Humanitarian Law and Human Rights’, in MA Meyer and H McCoubrey (eds), Reflections on Law and Armed Conflicts: The Selected Works on the Laws of War by the late Professor Colonel GIAD Draper OBE (Kluwer Law International, 1998) 145, 147 and 148–9.
220 See eg AH Robertson, ‘Humanitarian Law and Human Rights’, in C Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (ICRC, 1984) 793; R Kolb, ‘The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Convention’ (1998) 38 IRRC 409.
221 See Y Dinstein, ‘International Humanitarian Law as Lex Specialis’, in G Ravasi and GL Beruto (eds), International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence (Nagard, 2005) 103, 103.
222 See eg L Doswald-Beck and S Vité, ‘International Humanitarian Law and Human Rights Law’ (1993) 33 IRRC 94; H-P Gasser, ‘International Humanitarian Law and Human Rights Law in Non-international Armed Conflict: Joint Venture or Mutual Exclusion?’ (2002) 45 GYIL 149.
226 see below, 242–4.
227 Human Rights Committee, De Guerrero v Colombia, Communication No R.11/45, 31 March 1982, UN Doc A/37/40, 137, para 13.1; European Court of Human Rights, McCann and Others v UK, Application No 18984/91, Judgment, 27 September 1995, para 147; African Commission on Human and People’s Rights, Communications 279/03—Sudan Human Rights Organization and The Sudan, 296/05—Centre of Housing Rights and Evictions/The Sudan, 45th Ordinary Session 2009, para 146.
228 Doswald-Beck and Vité, Humanitarian Law and Human Rights Law, above note 222, 95–105.
230 See above, 44–6.
233 Gasser, ibid, 154.
234 Doswald-Beck and Vité, Humanitarian Law and Human Rights Law, above note 222, 105; C Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310, 315–17.
237 Gasser, Humanitarian Law and Human Rights Law, above note 222, 155.
240 See generally Meron, Humanization, above note 231.
241 Official Records, above note 72, Vol 5, 132, para 26.
244 Gasser, Humanitarian Law and Human Rights Law, above note 222, 157. Cf common Article 3 with Article 4 of the ICCPR.
246 Articles 18 and 24(2). See Droege, Interplay, above note 234, 343.
249 On other difficulties with the international human rights law/international humanitarian law relationship, see Krieger, Conflict of Norms, above note 218; NK Modirzadeh, ‘The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’, in RA Pedrozo (ed), The War in Iraq: A Legal Analysis (Volume 86 International Law Studies, Naval War College, Newport, 2010) 349.
253 see below, 242–4.
255 E Decrey Warner, J Somer, and P Bongard, ‘Armed Non-State Actors and Humanitarian Norms: Lessons from the Geneva Call Experience’, in B Perrin (ed), Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations, and the Law (University of British Columbia Press, 2012) 73, 81.
257 See eg Delalić et al Trial Judgment, above note 196, para 459.
258 Kunarac Trial Judgment, above note 256, para 467.
259 See Lubell, Challenges, above note 239, 745–6.
260 Kunarac Trial Judgment, above note 256, para 471. See also Prosecutor v Krnojelac, IT-97-25-T, Judgment, 15 March 2002, para 181.
261 Kunarac Trial Judgment, above note 256, para 470.
263 See A Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis’ (2005) 74 Nordic Journal of International Law 27; N Prud’homme, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel Law Review 356; C McCarthy, ‘Legal Conclusion or Interpretive Process? Lex Specialis and the Applicability of International Human Rights Standards’, in R Arnold and N Quénivet (eds), International Humanitarian Law and Human Rights Law (Martinus Nijhoff, 2008) 101; M Milanović, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2009) 14 JCSL 459, 473–6.
264 See generally, Fragmentation of International Law, above note 216, paras 56–8.
265 see below, 301–5.
268 Cf Milanović, Norm Conflict, above note 263, 474–6.
269 Al-Jedda v the United Kingdom, Application No 27021/08, Judgment, 7 July 2011, para 107. The issue was framed as a law of belligerent occupation issue. However, it has equal resonance for the law of non-international armed conflict.
271 Al-Jedda, above note 269, para 107.
274 Below, note 306–10.
275 Nuclear Weapons, above note 215, 226, para 25.
276 It is true that the Court stated in Wall, above note 215, para 106: ‘In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.’ However, the words ‘In order to answer the question put to it’ suggest the context-specific nature of the statement.
277 G Gaggioli and R Kolb, ‘A Right to Life in Armed Conflicts? The Contribution of the European Court of Human Rights’ (2007) 37 Israel Yearbook on Human Rights 115, 119–20; Krieger, Conflict of Norms, above note 218, 271; Milanović, Norm Conflict, above note 263, 462–5.
278 LM Olson, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2007–9) 40 Case Western Reserve Journal of International Law 437, 454.
279 See Milanović, Norm Conflict, above note 263.
280 Isayeva v Russia, Application No 57950/00, Judgment, 24 February 2005, para 209. See also Myrna Mack Chang v Guatemala, Ser C No 101, 25 November 2003, para 157; Commission Nationale des Droits de l’Homme et des Libertés v Chad, No 74/92, 9th Annual Activity Report 1995–6, para 22.
281 See eg General Comment No 31, above note 216, para 15; Isayeva, above note 280, paras 209–14; Varnava and others v Turkey, Application No 16064/90 and others, Judgment, 18 September 2009, para 191.
286 Public Committee Against Torture in Israel, above note 52, para 40. See also Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/2006/53, 8 March 2006, para 34.
287 Doswald-Beck, Right to Life, above note 282, 889.
289 See, in particular, Abresch, Human Rights Law of Internal Armed Conflict, above note 78; FF Martin, ‘Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict’ (2001) 64 Saskatchewan Law Review 347.
290 Isayeva, Yusupova and Bazayeva v Russia, Application Nos 57947/00, 57948/00 and 57949/00, Judgment, 24 February 2005; Isayeva, above note 280.
294 See Abresch, Human Rights Law of Internal Armed Conflict, above note 78; Krieger, Conflict of Norms, above note 218, 275; Gaggioli and Kolb, Right to Life, above note 277, 124–7; C Tomuschat, ‘Human Rights and International Humanitarian Law’ (2010) 21 EJIL 15, 19–20.
298 See, to varying degrees, Gaggioli and Kolb, Right to Life, above note 277, 158–62; D Kretzmer, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’ (2009) 42 Israel Law Review 8, 42. See also C Kreß, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflict’ (2010) 15 JCSL 245, 262.
299 Abresch, Human Rights Law of Internal Armed Conflict, above note 78, 746–50; Lubell, Challenges, above note 239, 746. See also Outcome of the Expert Consultation on the Issue of Protecting the Human Rights of Civilians in Armed Conflict: Report of the Office of the United Nations High Commissioner for Human Rights, A/HRC/11/31, 4 June 2009, para 24.
302 Krieger, ibid, 275.
303 The use of human rights monitoring mechanisms to enforce the law of non-international armed conflict is considered in Chapter 10.
304 H Lauterpacht, ‘The Limits of the Operation of the Law of War’ (1953) 30 BYIL 206; C Greenwood, ‘The Relationship between Jus ad Bellum and Jus in Bello’ (1983) 9 Review of International Studies 221. see below, 242–4.
305 See ICRC, Commentary on the Additional Protocols, above note 243, 1345; F Bugnion, ‘Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts’ (2003) 6 YIHL 167; 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 MN Schmitt and J Pejić (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein (Martinus Nijhoff, 2007) 241, 254–7.
306 Kunarac Trial Judgment, above note 256, para 470.
307 See, in particular, A Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006)Chapter 7.
308 C Tomuschat, ‘The Applicability of Human Rights Law to Insurgent Movements’, in H Fischer et al (eds), Krisensicherung und Humanitarer Schutz—Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (Berliner Wissenschaftsverlag, Berlin, 2004) 573, 576.
309 See eg Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, para 25; Report of four Special Rapporteurs, Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, para 19.
310 Tomuschat, Applicability, above note 308, 586–7.
311 Institut de Droit International, The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties (Session of Berlin, 1999) Article III.
314 The approach taken by the Special Rapporteur on extrajudicial, summary or arbitrary executions, ibid, has been adopted in later reports of the Special Procedures mechanisms of the Human Rights Council. See eg Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009, paras 305 and 1370; Report of four special procedures mechanisms, Mission to Lebanon and Israel, A/HRC/2/7, para 19; Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, paras 26–7; Human Rights Situation in Palestine and Other Occupied Arab Territories, A/HRC/10/22, 29 May 2009, para 22; Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, para 181. The territorial control approach also benefits from academic support. See eg NS Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’, in KE Mahoney and P Mahoney, Human Rights in the Twenty-first Century (Martinus Nijhoff, 1993) 297, 298, 300, 313; Zegveld, Armed Opposition Groups, above note 33, 149; C Ryngaert, ‘Human Rights Obligations of Armed Groups’  RBDI 355, 361, 375, and 380–2.
315 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2005/7, 22 December 2004, para 76; Report of four special procedures mechanisms, Mission to Lebanon and Israel, A/HRC/2/7, para 19; Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, paras 26–7.
316 Report on the Gaza Conflict, above note 314, paras 305 and 1370; Human Rights Situation in Palestine and Other Occupied Arab Territories, above note 314, para 22; Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, A/HRC/17/44, 1 June 2011, para 72.
317 For the practice, see Chapter 4. See also Fleck, Humanitarian Protection, above note 312, 69; Clapham, Human Rights Obligations of Non-State Actors, above note 307, 281–9; A Clapham, ‘Human Rights Obligations of Non-State Actors in Conflict Situations’ (2006) 88 IRRC 491.
319 Tomuschat, Applicability, above note 308, 576.
321 See especially below, 129–32.
322 See above, 94.
324 see below, 185–7.
325 See above, 94.
326 Abresch, Human Rights Law of Internal Armed Conflict, above note 78, 746; Droege, Elective Affinities, above note 218, 527; C Tomuschat, ‘Human Rights and International Humanitarian Law’ (2010) 21 EJIL 15, 20.
327 See eg Abresch, Human Rights Law of Internal Armed Conflict, above note 78; M Sassòli and LM 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 IRRC 599.
328 See eg the description in Abresch, Human Rights Law of Internal Armed Conflict, above note 78, 746–50; Lubell, Challenges, above note 239, 746; A Paulus and M Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict—A Tentative Conceptualization’ (2009) 91 IRRC 95, 112; ‘Outcome of the Expert Consultation on the Issue of Protecting the Human Rights of Civilians in Armed Conflict: Report of the Office of the United Nations High Commissioner for Human Rights’, A/HRC/11/31, 4 June 2009, para 24.
329 See Chapter 4.